LGBTQ+ discrimination in the workplace- what does the US Surpreme Court have to say?
It is always a fear of mine that when I fill out an application for a job, that when I get to the anti-discrimination section and enter my sexuality, that I am judged on the basis of that information. I am always scared that being bisexual will affect my career prospects, and often I do not disclose my sexuality in professional settings. I also choose the ‘prefer not to say’ option a lot of the time, and even though it is just on the basis of my anxiety, cases like the one the Supreme Court in the US heard on October the 8th, really reaffirm that hiding who I am when job searching is a good idea.
For some it is harder than for me to hide their sexuality, especially if they are transitioning, and it is not justifiable that in 2019 we should still have to pretend to be straight and cis just to be able to have an income.
The three cases heard by the Supreme Court in the US on October 8th consist of the cases of two gay men and one transgender woman fired from their jobs because of their sexuality. In the first case, Mr Zarda was dismissed from his job as a skydiving trainer after being overheard joking with a female client that the close contact between them in the air would not be an issue due to him being “100%” gay. The company said that he had been fired for sharing personal information with a client, in which case every hairdresser ever should also be fired, but a New York court ruled in Mr Zarda’s favour.
The thought that a company could fire you after overhearing a jokey comment about your sexuality is quite terrifying, but as of yet, the US constitution does not specifically cover LGBTQ+ identities under their Civil Rights act of 1964, and so it is up to the Supreme Court, at the start of this month, to decide whether or not workplace ‘discrimination on the basis of sex’ covers LGBTQ+ identities. Discrimination on the basis of sex is against the law according to Title VII of the Civil Rights act, and it was intended to protect women or men from being fired due to their gender. However, it could be widened to protect LGBTQ+ people.
The second case heard was the case of Mr Bostock, who was dismissed after joining a recreational gay softball league, which publicly revealed his orientation. His employer, Clayton County, said his dismissal was the result of “conduct unbecoming of a county employee”, but did not say what this was. Joining a sports team is now a fireable offense! Unfortunately, a federal court in Atlanta agreed, and his case was dismissed.
The final case was that of transgender woman Aimee Stephens, who had been working at a funeral home as Anthony Stevens for six years, before writing her work a letter that said she would be coming to work as her true self in appropriate business attire. She was then fired two weeks later for wearing women’s clothes at work. A lower court sided with Ms Stephens.
The Trump administration filed two briefs earlier this year, that both discrimination on the basis of sexuality and transgender people were not covered by Title VII of the Civil Rights act of 1964. If the court rules in favour of the Trump administration’s findings, the 11.3 million Americans who identify as LGBTQ could be vulnerable to being fired on the basis of sexuality and gender identity.
The decisions on this case are expected in June 2020, and thus far only four out of nine Supreme Court Justices have spoken in support of Title VII covering discrimination for LGBTQ+ people. The other Justices have remained tight lipped on their stances.
I cannot imagine the pain that the LGBTQ+ Americans will face if the Supreme Court rules in favour of the Trump administration, as this will strip their workplace rights, leaving them vulnerable to firing and economic blackmail. This may leave families on the street, and could also have drastic effects on the US economy.
It all comes back to ‘on the basis of sex’. This can be interpreted in many ways. If Aimee Stephens’ biological sex had been aligned with who she was, she would not have been fired, as she would have been allowed to wear the clothes that were appropriate for her biological sex. Therefore, it could be said that she was discriminated against ‘on the basis of sex’.
Luckily, in the UK we have the Equality Act 2010 protects LGBTQ+ identities from discrimination, harassment and victimisation in the workplace. That means that whenever you do check the box of a LGBTQ+ identity in the UK, it is against the law for employers not to adhere to the Equality Act, even before you have been hired! You are protected through the application and interview process from discrimination.
You would have thought that a supposedly progressive country such as the US would have implemented protections such as ours, but since the Trump administration came into power, protections for LGBTQ+ people have been slowly stripped. Including, but not limited to, withdrawing guidance allowing unisex bathrooms in schools, stopping transgender people from enlisting in the army, and giving business owners the ability to turn away LGBTQ+ people if they have a ‘religious exemption’.
This culture of discrimination against LGBTQ+ people and their rights in the US leaves millions of Americans living lifetimes of rejection, and any laws protecting them are poorly enforced. This culture in lawmaking and policing also sets a precedent to the rest of the country that not only is discrimination against the LGBTQ+ community not frowned upon, but it can also go unpunished in the eyes of the law.