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Title VII: No Longer A Barrier For LGBT+ Discrimination?

Title VII is a section of the Civil Rights Act of 1964 that prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. This act has very few exceptions, and has grown in importance over the years since it was put in place. On Monday, the Supreme Court announced that in three upcoming cases it will make a decision as to whether or not the Title VII law bans discrimination against LGBT+ employees in the U.S. workforce. The current Supreme Court has a conservative majority.

The history of Title VII is convoluted but important to understand. In 1965, when it took effect, the law was simply thought of as race-focused. It was given more elements, but the important thing at the time was to end unfair and racist hiring and firing practices. While this remains important, the scope of the law changed drastically over time. In 1978, the Pregnancy Discrimination Act was passed to supplement Title VII and prevent discrimination against pregnant people. Other supplementary laws have tackled discrimination issues relating to age- and disability-based discrimination. The Supreme Court has also ruled that workplace sexual harassment is punishable under Title VII.

Laws and cases like the ones above are known as precedent – binding legal decisions that must be followed in similar and subsequent cases. One very notable area where precedent is missing: the issue of discrimination against the LGBT+ community in the workforce. However, the Equal Employment Opportunity Commission (a federal agency) has held in the past that discrimination against workers based on “gender identity or transgender status” is prohibited under the existing scope of Title VII. An EEOC document intended for use by transgender or otherwise non-conforming workers makes this very clear. “Although Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity,” it states, “the EEOC and courts have said that sex discrimination includes discrimination based on an applicant or employee’s gender identity or sexual orientation.”

The EEOC has laid out a clear and simple argument for why discrimination against LGBT+ people is in violation of Title VII. They say that “discrimination against an individual because that person is transgender is by definition discrimination based on sex, thus breaking the law.”  Discrimination on the basis of sexual attraction or orientation “also necessarily states a claim of sex discrimination under Title VII because […] it takes sex into account by treating him or her differently for associating with a person of the same sex [and] it involves discrimination based on gender stereotypes.”

Sessions speaks about Title VII (via Shutterstock)

While this argument is backed by recent and relevant EEOC decisions, they are not binding precedent and do not prevent a change in the rules. In December 2014, Attorney General Eric Holder set out to remedy that by releasing a memo that aligned the D.O.J. with the EEOC and effectively bound the government to treat LGBT+ discrimination as though it was in violation of Title VII.

This policy was in place for about three years and was not widely contested. However, Attorney General Jeff Sessions withdrew Holder’s memo in 2017 and reversed the Department of Justice’s stance on the issue. According to BuzzFeed News, Sessions stated at the time that Title VII should be interpreted as prohibiting only discrimination between “men and women.”

The only challenge to the policy created by Jeff Sessions has come in the form of a court case. Evans v. Georgia Regional Hospital was a 2017 case in the 11th Circuit Court of Appeals which stated that firing employees based on sexual orientation was not prohibited by Title VII, using a 1979 court case as precedent. However, further investigation by this reporter finds that the case in question, Blum v. Gulf Oil Corporation, found that the employee was fired not for his sexual orientation but for an entirely unrelated breach in company policy. The Supreme Court refused to hear an appeal of the Evans case.

With this convoluted history, the outcome of the three upcoming Supreme Court decisions becomes all the more important. These cases will set a clear legal precedent as to whether Title VII includes discrimination against LGBT+ people, one way or the other. If the court rules one way, we’ll be back to the status quo of discrimination being prohibited – but if they swing the other way LGBT+ workers will be virtually unprotected. These three decisions will make American history, but even more importantly, millions of people’s employment hangs in the balance.

Follow the three court cases here, here, and here.

Photo: Vox

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Ezra Levinson
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Ezra Levinson is a writer, activist and student. He lives in the United States where he enjoys spending time with friends and loved ones.

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