Government

Can You Be Fired For Being Gay? The Government Says YES! And Also NO!

If the EEOC won't stand with the bigots, then the DOJ won't stand with the EEOC.

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It’s not that the Trump administration wants to discriminate against LGBTQ Americans. It’s just that it cannot abide activist judges trampling on the sacred right of Congress to not pass laws. Surely if the House and Senate, in their infinite wisdom, wanted to prevent workplace discrimination against gay and transgender citizens, they would simply draft legislation to that effect. And thus it is inappropriate for courts to extend the protections of Title VII’s ban on gender discrimination to people who are fired or harassed due to their sexual orientation or gender identity. If you are the wrong kind of man or woman and you don’t live in a state or municipality which has passed its own anti-discrimination law, the Justice Department says you are shit out of luck.

Not so, according to the Equal Opportunity Opportunity Commission, which contends that Title VII of the Civil Rights Act’s ban on discrimination “because of sex” does indeed include sexual orientation and identity. The EEOC argues that the 30-year-old Price Waterhouse v. Hopkins holding that Title VII protected a lesbian woman who failed to conform to gender stereotypes clearly means sexual orientation and gender identity fall under the rubric of illegal discrimination because of “sex.”

Nevertheless, Bloomberg Law reports that the Justice Department tried for weeks to get the EEOC to reverse its position, but to no avail. Which is how the EEOC wound up with zero signatures from the Solicitor General’s Office on its brief in support of LGBTQ rights — which is not in itself unusual. And the Justice Department wound up filing an amicus brief in direct opposition to the EEOC — which is pretty weird.

So the federal government will be arguing both sides of this issue before the Supreme Court on October 9, 2019. In its Orders List yesterday, the Court granted the Solicitor General’s Office 15 minutes at the podium to argue that the Sixth Circuit erred when it held in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that a transgender woman was unlawfully fired from her job at a funeral home because her employer thought her gender transition violated “God’s commands.”

The SG will also get 10 minutes to convince the court that it is entirely legal to fire employees for being gay, siding with the Eleventh Circuit over the Second, which reached the opposite conclusion in Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda respectively.

This is what the religious right and Federalist Society has always wanted. It’s why they kept that seat open for Gorsuch. But don’t dare call ’em bigots, because that would be rude.

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Court to take up LGBT rights in the workplace [SCOTUSblog]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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