Surprising as it may seem, LGBTQ+ civil rights didn’t end with Obergefell v. Hodges in 2015. While it was a great step for same-sex couples and marriage equality, the fight carries on for those facing discrimination in other aspects of day to day life, from applying for housing to employment to adoption. Some states have stepped up and have implemented laws to protect LGBTQ+ individuals, but most states have no such protections, making everyday life difficult for valuable members of society. For a full list of states and their LGBTQ+ protections, check out lgbtmap.org.
The Upcoming Cases
Three upcoming cases in the Supreme Court could make or break employee protections in the US: Bostock v. Clayton County, Georgia, and Altitude Express Inc. v. Zarda, debating whether sexual orientation-based discrimination is illegal under the Civil Rights Act, Title VII; and R. G. & G. R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, debating whether Title VII of the Civil Rights Act covers transgendered individuals or sex stereotyping in Price Waterhouse v. Hopkins. The former two will help the lower courts to determine whether discrimination based on sexual orientation is illegal, and the latter will determine whether it counts as wrongful termination to fire a transgendered employee for expressing their gender identity through their clothing.
Should Bostock and Altitude Express Inc. be upheld by the courts, employers would no longer be allowed to terminate or harass employees with the only cause being their sexual orientation. There have been arguments against this: worries about freedoms of religion and speech, and fears of unjust discrimination lawsuits. The passage of these new regulations would make employee training sessions more common, which can be argued is actually better for the company as a whole because a team works better when members of the team are trained not to harass their peers. Harassment can be defined in a variety of ways but is often identified as a pattern of abuse in the workplace.
The employer impacts will be similar if G. R. & R. G. is overturned: employers will no longer be allowed to terminate employees due to their gender identity and expression. This won’t mean that continued dress-code violations are not grounds for termination, just that if an employee is following the dress code of their gender identity they should not be cited for dress code violations. Again, harassment training will most likely be required.
Currently, discrimination laws vary state by state by state by state. Some states, like Washington, have a long list of discrimination protections for employees, but most do not. Should the court take the side of the employees in these upcoming cases, discrimination on the basis of sexual orientation and gender identity will be nationally recognized under the Civil Rights Act of 1964. Wrongfully terminated and harassed employees will be able to seek legal action against their employers. It also means that employees can be terminated for harassing other employees on the basis of their gender identity and/or sexual orientation.
Discrimination in the workplace is a hardship half of all lesbian, gay, and bisexual Americans have or still face, and a fact of life for almost all transgendered workers. The number of openly LGBTQ+ individuals in America is growing, with 8.2% of millennials in 2017 identifying as LGBTQ. This community is a staple of American culture and the workforce and should be recognized by the courts as such.