U.S. Supreme Court will weigh in on whether LGBTQ people can be fired because of their identities

By Steve Kilar, June 2019 Issue.

At a Chili’s

restaurant in West Phoenix, a manager told Meagan Hunter last year that if she

wanted to be promoted from server to shift leader she needed to “dress more

gender appropriate.”

“Are you telling me that I need to have my

breasts hanging out to be successful in your company?” responded Meagan.

“Not in those words,” he replied.

But it was clear to Meagan, who is a

lesbian, what he meant. He wanted her to dress more stereotypically feminine in

exchange for the higher-paying job. Meagan later learned that manager also did

not consider her for a bartender position because he thought a lesbian

bartender would not draw desirable customers.

“I couldn’t continue to work at a place

where my willingness to conform to a stereotype was more important than my job

performance,” Meagan wrote in a testimonial posted on the ACLU’s website. “So,

I left a job that I enjoyed and said goodbye to the coworkers I considered


With the ACLU’s help, Meagan filed an

employment discrimination claim with the U.S. Equal Employment Opportunity

Commission, which enforces federal employment discrimination laws.

The legal merit of discrimination claims

like Meagan’s — those based on the sexual orientation or gender identity of the

employee — will be determined during the next U.S. Supreme Court term. The

Supreme Court recently decided to hear three cases about discrimination against

LGBTQ employees.

Title VII, a portion of the Civil Rights

Act of 1964, makes it unlawful for businesses with more than 15 workers to

discriminate against employees based on race, skin color, religion, national

origin and sex. Sex discrimination includes discrimination based on gender

identity and sexual orientation, according to the EEOC and some federal courts.

The idea that

sexual orientation and gender identity discrimination are forms of sex

discrimination may seem obvious to LGBTQ people and their allies. But the

notion that sex discrimination under current federal law includes sexual

orientation and gender identity discrimination is still up for debate. The

Trump administration has sided with businesses that want to discriminate

against LGBTQ people, arguing in federal sex discrimination cases that being

queer can be considered a fireable offense.

There’s a lot riding on the Supreme Court’s

decision, both for individuals and for LGBTQ people as a collective.

For Meagan, losing her job meant a

significant income decline, which made it more difficult to support herself and

her son. Although she was able to get a server position at another restaurant

within a few weeks, newer employees are scheduled to work fewer hours. It will

take time to build up the seniority she had at Chili’s, where she was a highly

rated employee. Meagan had to put her plans for buying her first home on hold.

Aimee Stephens, whose discrimination case

will be considered by the Supreme Court, and her wife had to rely on a single

income to support themselves and their daughter, who was in college. They had

to sell belongings to pay their bills. Aimee, who was fired from her job as a

funeral director after she came out as transgender, also lost her health

insurance and was forced to find other ways to pay for expensive medical care.

“I had given almost seven years of my life

to the funeral home, offering countless families comfort when they needed it

most,” Aimee wrote in a blog post shared by the ACLU, which is representing her

before the Supreme Court. “Being discarded so coldly was hard to understand.”

For LGBTQ people collectively, the outcome

of the Supreme Court decision may impact more than the ability to bring a

federal employment discrimination claim. A determination that sex

discrimination in the employment context does not cover sexual orientation or

gender identity discrimination may ripple into other areas of nondiscrimination


“If federal law says it’s fine to fire

someone because she’s lesbian or transgender, other federal civil rights laws

may well not protect LGBTQ people, either,” wrote James Esseks, the director of

the ACLU’s LGBT & HIV Project. “The federal education anti-discrimination

law may not stop schools from harassing transgender students. The Federal

Housing Act may not stop landlords from evicting same-sex couples. And the

Affordable Care Act may not prevent health care providers from turning away

transgender people.”

We’re not likely to know the Supreme

Court’s stance on employment discrimination against LGBTQ people before June

2020. I hope a majority of the justices realize that no one should have to live

in fear that they can be fired just because of who they are.

In the

meantime, we need to keep fighting for explicit laws barring sexual orientation

and gender identity discrimination. Having these laws at the state and federal

levels will establish unambiguous protections for LGBTQ people.

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