Supreme Court employment discrimination ruling may impact Utah
A pride flag hangs in the window of Fillings and Emulsions in downtown Provo while people pass by Wednesday, June 17, 2020. Isaac Hale, Daily Herald
Pride flags hang from City Limits Tavern in downtown Provo on Wednesday, June 17, 2020. Isaac Hale, Daily Herald
A pride flag and Black Lives Matter sign are displayed in the window of Fillings and Emulsions in downtown Provo on Wednesday, June 17, 2020. Isaac Hale, Daily Herald
Pride flags hang from City Limits Tavern in downtown Provo on Wednesday, June 17, 2020. Isaac Hale, Daily Herald
After the U.S. Supreme Court ruled that discrimination “because of sex” extends to LGBTQ+ employees Monday, Utah attorneys are weighing in on how this impacts the 8.1 million LGBTQ+ U.S. workers across the country.
The Supreme Court’s decision impacted the outcomes of three cases involving alleged discrimination in the workplace based off of sexual orientation or gender expression.
In two of the cases, employees sued their employers after they had been fired because they were gay. Gerald Bostock won awards for his work as a child welfare coordinator in Georgia but was fired after he joined a gay recreational softball league. Donald Zarda was skydiving instructor who was gay and died before the Supreme Court could make its ruling.
The third case involved a transgender woman, Aimee Stephens, who had worked as a funeral director in Michigan for six years. Two weeks after she told her employers that she was transgender and would be coming to work as a woman, she was fired. Stephens died earlier this year.
For years, these three cases worked their ways through local, state and federal courts before reaching the desk of the nine U.S. Supreme Court justices. These three cases posed a question as to whether sexual orientation and gender expression were protected under previous decisions, and it was the Supreme Court’s duty to make a ruling in the matter.
Bryan Benard is an attorney at Holland and Hart in Utah studying employment law and representing private and public businesses in wrongful termination, harassment and discrimination claims and lawsuits, federally and locally.
“Roughly half of the courts in the U.S. had determined that discrimination based on homosexuality or transgender status was not prohibited under the Civil Rights Act of 1964, and the other half of the courts in the country had decided it was,” Benard said. “There was a split amongst the lower courts in the country as to whether that law actually protected or did not protect that LGBTQ community in employment decisions.”
By a vote of 6-3, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act includes sexual orientation and gender expression. In 1964, Title VII of the Civil Rights Act made it illegal for employers to discriminate against employees on the basis of a person’s race, color, religion, sex and national origin.
When the final decision came down, Benard said he and many others were surprised.
He and others in his field were expecting to see the justices make decisions that aligned with their political ideologies, which would have skewed the vote 5-4 against prohibiting discrimination in employment decisions based on sexual orientation or gender expression.
“The largest surprise, to me, was that is what Justice Neil Gorsuch who Trump appointed to the Supreme Court who wrote the opinion for the majority of the justices,” he said. “A lot of us come to this thinking in very binary terms that if a republican appoints a justice then they are going to be conservative and they won’t rule in favor of more liberal issues.”
In this instance, Benard said, it was not only surprising that Gorsuch would vote for the Civil Rights Act of 1964 to include individuals of the LGBTQ+ community but moreover that he would write the decision.
Gorsuch wrote the majority opinion in the ruling, writing, “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Only justices Brett Kavanaugh, Samuel Alito and Clarence Thomas held the dissenting votes, which was even more surprising as Chief Justice John Roberts, also viewed as a more conservative justice, voted in favor of prohibiting discrimination under the Civil Rights Act of 1964.
Throughout his time as chief justice, Roberts has only had one oral dissent from the bench: the 2015 case that legalized same-sex marriage in all 50 states.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts wrote in 2015. “Celebrate the achievement of a desired goal. … Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Before this decision, only 21 states — including Utah — had protections in place for gender, sexual and romantic minorities. Additionally, seven states only provided workplace protections to public employees, leaving 22 states where employees could be fired for being a part of the LGBTQ+ community up to June 14.
These rulings, however, do not include religion organizations, as the justices are “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution,” Gorsuch wrote in the Court’s opinion.
Benard said because of this concern, the justices have left it to future courts to decide how to balance the importance of religious liberties and civil rights. Additionally, he said, he wouldn’t be surprised if several lawsuits make their way to the Supreme Court in this matter.
Realistically, however, these cases won’t be seen in the Supreme Court for decades.
“It’s one thing when you have a closely held religious belief about certain conduct,” he said. “Can a different law impose on you the requirement that you must hire those who have different views or lifestyles? Those cases are going to be difficult cases.”
While this ruling has significantly changed provisions nationwide in 22 states, Benard said Utah is among a number of states where very little, if anything, has changed. Since 2015, he said, the Utah State Legislature elected to include workplace protections for LGBTQ+ employees within the state’s workplace discrimination statute.
“In Utah, it doesn’t have quite the same impact because we were already providing protections to those employees,” he said. “I think the difference that may result with this is heightened awareness.”
Several employers and employees might have been unaware that under Utah law the LGBTQ+ community had rights to protect them against discrimination in the workplace, he said.
The attention that this ruling has received might help empower those who feel they are being discriminated against for their sexual orientation or gender expression to reach out for assistance.
For the most part, the employers Benard has worked with in the past are rarely out to purposely discriminate against people. Rather, he said, these employers believe they are acting in a professional manner to correct or balance the comfort levels of others in work environments.
This is especially true when in regards to bathrooms and dress codes.
These instances, he said, have not been addressed by the Supreme Court ruling and are going to be concerns that employers face. In general, employers should create a respectful environment where they make time to listen to the concerns of their employees, Benard said.
