Discrimination by Employers

The Supreme Court Has An Opportunity To Protect LGBTQ Rights In The Workplace. It Should Take It.

  Liz Hayes

It’s stunning that in 2019, there’s still any debate over whether LGBTQ people can be fired from their jobs simply because of their identity. We’re approaching the 4-year anniversary of the Supreme Court’s marriage equality decision, and we just celebrated a memorable mid-term election in which a vibrantly diverse slate of candidates, including many LGBTQ people, were elected at all levels of government.

And yet, here we are: On Monday, the Supreme Court agreed to hear three cases that involve gay and transgender people who were fired because of their sexual orientation or gender identity. Although a religious freedom question brought up in one of the cases at a lower court won’t be addressed by the Supreme Court, AU President & CEO Rachel Laser pointed out that discrimination against LGBTQ people is often religiously motivated.

“Much of the bias that LGBTQ people experience on a daily basis is rooted in fundamentalist views of religion,” Laser said in a statement on Monday. “But in our richly diverse nation, our shared secular laws are what must continue to govern – without special privileges or exceptions for some religious groups.

“In order for America to live up to its promise of liberty, equality and church-state separation, we must not allow religious freedom to be weaponized to license harm to others,” Laser said. “Through these cases, the Supreme Court has an opportunity to make it clear that LGBTQ Americans cannot be mistreated because their existence offends some people’s religious beliefs.”

Discrimination in the name of religion is exactly what happened to Aimee Stephens, a transgender woman who was fired by the Detroit funeral home she had worked at for six years because she began living publicly as a woman. The owner of R.G. & G.R. Harris Funeral Homes fired her because he said her behavior contradicted his religious beliefs.

The issue went to court after the federal Equal Employment Opportunity Commission (EEOC) determined the funeral home had violated Title VII of the landmark Civil Rights Act of 1964, which protects employees from discrimination.

The funeral home countered by trying to claim the federal Religious Freedom Restoration Act (RFRA) gave it a right to fire Aimee on religious grounds. In a friend-of-the-court brief joined by 76 faith leaders and 13 religious and civil-rights organizations, Americans United said that’s a gross misinterpretation of RFRA, which doesn’t give employers the right to use religious beliefs to bypass antidiscrimination laws. In fact, doing so would violate the First Amendment by favoring certain religious beliefs while causing harm to innocent people who have different beliefs.

The 6th U.S. Circuit Court of Appeals agreed with us and ruled in Aimee’s favor last year, but the funeral home – represented by the Religious Right legal firm Alliance Defending Freedom – appealed to the U.S. Supreme Court. Additionally, the Trump administration weighed in on the funeral home’s side last fall when the Department of Justice told the court it does not support the position of the EEOC – another federal agency – that Title VII’s protections against discrimination because of sex include protections for transgender people.

The two other LGBTQ rights cases the Supreme Court agreed to hear include:

  • Altitude Express Inc. v. Zarda: Skydiving instructor Donald Zarda was fired because he was gay (Donald has since died; his family is continuing his legal battle in his honor). Last year, the 2nd U.S. Circuit Court of Appeals ruled in his favor that discrimination based on sexual orientation is a form of sex-based discrimination prohibited under Title VII.
  • Bostock v. Clayton County, Ga.: Gerald Lynn Bostock was fired from his job of 10 years as a county child welfare services coordinator after his employer learned he’s gay. Last year, the 11th U.S. Circuit Court of Appeals refused to reconsider Bostock’s case, relying on a 1979 decision that wrongly excluded sexual orientation discrimination from Title VII’s protections.

The Supreme Court won’t hear arguments in these three cases until the next term, which begins in October. But these should be easy decisions to make – the justices just have to affirm what we as a society have already determined and what law has already established: That people can’t be discriminated against simply because of who they are or who they love.

“The Supreme Court should make it abundantly clear that no one’s rights in America hinge on someone else’s religious views,” Laser said.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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