JURIST Guest Columnist Merrick T. Rossein, a Professor at the City University of New York School of Law, discusses employment discrimination based on sexual orientation.
As we await the Supreme Court’s decision on whether under Title VII of the 1964 Civil Rights Act “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation, I suggest that the Justices listen to both the Missouri Supreme Court and the jury in the “heartland” state of Missouri. The jury recently awarded a St. Louis County gay male police officer nearly $20 million in a sexual orientation discrimination case.
The Missouri Supreme Court in 2019 extended legal protections to LGBTQIA+ people in a case that dealt with employment rights under the state’s human rights law prohibiting discrimination because of sex. The jury heard police officer Wildhaber tell them that he was turned down for 23 promotions in about six years. With over 15 years of experience, a clean record, and strong performance reviews, he placed in the top tier of candidates. Further, Wildhaber asserted a member of the Board of Police Commissioners told him he would have to “tone down [his] gayness” if he wanted to receive a promotion to lieutenant. After the judgment, the jury foreperson stated the jury wanted the verdict to “send a message” that “[i]f you discriminate you are going to pay a big price.” Will the Supreme Court hear this message?
On October 8, 2019, the Supreme Court heard oral argument on whether Title VII protects gay, lesbian and transgender employees. Because fewer than half of the 50 states specifically bar discrimination based on sexual orientation or gender identity (the Missouri law did not explicitly make unlawful sexual orientation discrimination), the Court’s ruling could be significant. The outcome of the two cases could hinge on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs’ argument but also expressed concern about the “massive social upheaval” that he believed would follow from a ruling for them.
Justice Gorsuch, former Justice Kennedy’s law clerk and mentor who led the Supreme Court in important social change recognizing the humanity of LGBTQIA+ people, knows well that although Bostock and Zarda (two plaintiffs before the court) were fired for being gay – that is, for being men who were attracted to other men – they would not have been fired if they were women who were attracted to men. Gorsuch pushed back against efforts to distinguish between sex and sexual orientation, pointing to the fact that Title VII only requires sex to be a cause. If Bostock and Zarda were men who liked other men, Gorsuch asked, why wouldn’t that be enough to bring Title VII into play?
Asserting and defending the employment rights of lesbians, gay men, bisexuals, and transgender, queer, intersex, and asexual people (LGBTQIA+) remains a civil rights struggle. The Supreme Court’s recognition that the Due Process and Equal Protection Clauses of the Constitution must protect the right of same-sex couples to marry in Obergefell v. Hodges reflected the continuing prejudices in “law and social convention” that prevent equality and dignity from including everyone. Justice Kennedy writing for the Court aspired to look beyond prejudice in its opening line: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
Despite a dramatic increase in public acceptance of LGBTQIA+ individuals post the Supreme Court’s decision in Obergefell, during the administration of President Trump, public tolerance for accepting LGBTQIA+ individuals declined. The policy positions taken by the President and his administration concerning LGBTQIA+ people increased the hateful rhetoric. The Supreme Court embracing this group of individuals by finding protection in Title VII can send a message that hate and legal pushback by this President are not the direction the people of the “heartland” and throughout the country will travel.
Not only does discrimination in the workplace injure, embarrass, and block individual LGBTQ workers, it stigmatizes LGBTQ people as a group. LGBTQ people’s exclusion from society is compounded by employment discrimination’s brand of second-class status, and the pressure to remain closeted or be denied a visible place in the range of jobs our society offers. Lawyers litigating for equal treatment for their LGBTQIA+ clients must innovate and educate as well as advocate. As more and more people become aware of their LGBTQ coworkers, neighbors, family members, friends, and professionals, withholding basic civil rights protections in employment becomes increasingly untenable. Employers, as well as employees, benefit accordingly.
The Supreme Court should continue to build on Justice Kennedy’s leadership and recognize that Title VII extends full federal protections against employment discrimination because of a person’s sex. Ruling to exclude LGBTQIA+ people from federal civil rights protections would give greater berth to the stereotyping and ignorance that are the wellsprings of prejudice.
Merrick T. Rossein is a Professor of Law at the City University of New York School of Law and the author of a three-volume treatise, Employment Discrimination Law and Litigation (Thomson Reuters West). He acknowledges Shirley Lin’s (NYU Law School, Acting Assistant Professor) contribution and her recently published chapter 27, LGBTQIA+ Discrimination in his treatise.
Suggested Citation: Merrick Rossein, Listen to the “Heartland” Jury and Judges: “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation, JURIST – Academic Commentary, Dec. 1, 2019, https://www.jurist.org/commentary/2019/12/merrick-rossein-employment-discrimination
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