The Supreme Court has agreed to decide whether the prohibition against sex discrimination in Title VII also covers discrimination based on sexual orientation and gender identity.
In other words, are there LGBT legal rights in the workplace?
I should be on my third keyboard with all of the two-finger typing I’ve done on this issue. If you need a refresher, here are a few of the many articles printed yesterday addressing the big Supreme Court news:
- Supreme Court Can Settle Split on LGBT Bias in the Workplace from Robert Iafolla and Supreme Court to Consider Whether LGBT Bias Is ‘Sex’ Bias (2) from Erin Mulvaney and Patrick Dorrian reporting at Bloomberg Law
- What’s All The Fuss? SCOTUS (Finally) Considers Whether Adverse Decisions Against LGBT Employees Constitute Sex Discrimination In Violation of Title VII from my FisherBroyles partner, Amy Gluck, at the Employment Discrimination Blog
- Supreme Court to consider workplace discrimination of LGBTQ community from Jacqueline Thomsen reporting at The Hill
- Supreme Court to decide whether LGBTQ people are covered by Civil Rights Act from Todd Ruger reporting at Roll Call
- Supreme Court to Decide if Civil Rights Act Prohibits LGBT Discrimination from Allen Smith, J.D., and Lisa Nagele-Piazza, J.D., SHRM-SCP reporting at SHRM
- Justices will rule on Title VII reach to sexual orientation and gender identity from Pam Wolf reporting at Wolters Kluwer
But, maybe what you want to know is who is going to win?
My way too early prediction is that the plaintiffs will win with a 5-4 victory. Who are the five votes? Kagan, Breyer, Sotomayor, Ginsburg, and … Chief Justice Roberts will be the swing vote.
Hear me out…
When presented with the opportunity to decide LGBT issues, he’s often focused more on procedural arguments, rather than substantive ones. For example, in U.S. v. Windsor (the Defense of Marriage Act case), Chief Justice Roberts dissented because he thought the Court lacked jurisdiction to decide the issue before it. In Hollingsworth v. Perry, Chief Justice Roberts sided with the majority in holding that private parties lacked standing to disturb a California law that permitted same-sex couples to marry.
One exception is in Obergefell v. Hodges, where Justice Roberts was not swayed by “social policy and considerations of fairness,” and instead concluded that the Fourteenth Amendment does not require a state to license a marriage between two people of the same sex. But, some speculate that his silence two years later in Pavan v. Smith signaled a possible 180.
Or maybe, just maybe, on the specific issues presented in the three cases now before the Supreme Court, Chief Justice Roberts was leaning the plaintiffs’ way all along. Check out this tweet from a law professor, which quotes Chief Justice Roberts during oral argument from the Windsor case:
“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
But, how much does it matter if Title VII does not cover LGBT rights?
I don’t say that to be flip. But, consider that many states and localities already have LGBT workplace protections in place. Plus, depending on how the elections unfold in 2020, there may be enough votes in both Congress to rewrite Title VII if SCOTUS decides that the law does not protect LGBT rights. We’ve seen this happen before. For example, there’s the Lilly Ledbetter Fair Pay Act of 2009.
But, this is all speculation and conjecture. And, since I don’t wear black robe — my blogger robe is purple and bejeweled — you can take most of what I say with a grain of salt.
Unless I nail the 5-4 prediction. In which case you can slather me in praise.