Supreme Court can fix LGBT discrimination

By M.V. Lee Badgett, Amanda Baumle and Steven Boutcher

In 2015, Justice Anthony Kennedy cast the deciding vote in the Supreme Court decision to allow same-sex marriage. But this ruling did not establish equal rights for LGBT people, given they could still be “Married on Sunday, fired on Monday.” This happened in February to Jocelyn Morffi, a teacher who was fired by a Miami Catholic school when she returned from her wedding to Natasha Hass. The right to marry has not been accompanied by a right not to be fired for marrying a samesex partner, or simply for being gay or lesbian.

As all eyes turn to Brett Kavanaugh, President Donald Trump’s nominee for the Supreme Court, it’s clear that losing Kennedy’s vote couldn’t have come at a worse time for resolving such dilemmas and protecting LGBT rights. Just ask Aimee Stephens, a transgender woman who was fired from a Michigan funeral home when she transitioned. Or Gary Bostock, a gay man who ran an awardwinning volunteer program in the child welfare system in Georgia’s Clayton County but was fired shortly after he started playing in a gay softball league. Their lawsuits, along with one other, are on appeal to the Supreme Court and could determine whether millions of LGBT people are protected by federal law against workplace discrimination.

Since 2013, the U.S. Equal Employment Opportunity Commission has held that discrimination by employers against LGBT people is sex discrimination, which is prohibited by Title VII of the Civil Rights Act. After all, much discrimination against lesbian, gay, bisexual and transgender people is based on gender stereotypes that frame men and women as having different capabilities and duties. Also, sex is inherently embedded in the meaning of sexual orientation and gender identity — try explaining what it means to be gay or transgender without referring to sex. But many states, including Texas, have no state protections for LGBT people, so the professional futures of people such as Stephens and Bostick now ride on the Supreme Court agreeing with the circuit courts that affirmed the EEOC’s sex discrimination interpretation.

These three cases are just the tip of the iceberg of LGBT discrimination claims that will be affected if the Supreme Court overrules the conclusion that discrimination

against them is a form of sex discrimination. Since making this argument in 2013, the EEOC has accepted charges from people in any state if they believe their employer has discriminated against them because of their sexual orientation or gender identity. Our new study shows how powerful the EEOC policy has been in expanding legal protections for people like Gerald Bostock, Aimee Stephens and Jocelyn Morffi.

More than 9,000 sexual orientation and gender identity discrimination charges were filed with the EEOC or state civil rights agencies from 2013 to 2016.

Charges were filed in every state, but the biggest surge was in the 28 states without state laws prohibiting employment discrimination based on sexual orientation or gender identity. In these states, LGBT individuals are more likely to be fired, harassed or retaliated against for pursuing their rights. The EEOC policy represents the only legal sanction against employers firing, demoting or harassing the 4.5 million LGBT people who live in those states.

Although filing a charge does not necessarily mean that an employer did something illegal, the policy has achieved results that suggest widespread discrimination has occurred. The EEOC reports that its own charges have resulted in $16 million in monetary benefits alone for people alleging discrimination. Among the charges that have been closed, 15 percent have resulted in some kind of reimbursement for the party who was able to demonstrate discriminatory treatment. This is close to the 17.5 percent average for all of the EEOC’s cases during the same period. These figures suggest that charges of sexual orientation and gender identity discrimination are as meritorious as for other protected categories.

A new federal law, like the proposed Equality Act, would make LGBT people far less vulnerable to such discrimination. But that’s not likely to happen with the current Congress. Equality does not have to wait, however. The Supreme Court can close the loop by affirming that discrimination against LGBT people is sex discrimination. Millions of people’s jobs and livelihoods could depend on it.

As all eyes turn to Brett Kavanaugh, President Trump’s nominee for the Supreme Court, it’s clear that losing Kennedy’s vote couldn’t have come at a worse time for resolving such dilemmas and protecting LBGT rights.

Badgett is a professor of economics at the University of Massachusetts, Amherst. Baumle is a professor of sociology at the University of Houston. Boutcher is a senior research fellow at the Institute of Social Science Research at the University Massachusetts, Amherst.