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Top Court Ruling on LGBT Workers Will Reverberate in States (1)

June 16, 2020, 8:20 PMUpdated: June 16, 2020, 9:32 PM

The U.S. Supreme Court’s landmark decision giving LGBT workers federal anti-discrimination protections will ripple across those states without laws that explicitly prohibit bias based on sexual orientation or gender identity.

State courts aren’t bound by the high court’s ruling that interpreted Title VII of the 1964 Civil Rights Act. But they’ll be persuaded by the decision and its reasoning that bias “because of sex” includes orientation or identity discrimination, especially if their state law was modeled on Title VII or includes similar language, legal observers said.

The Supreme Court’s ruling also could fuel action in Congress and spur some state legislatures to expand their anti-discrimination laws, observers said.

The scope of state workplace bias laws could have a significant impact on LGBT workers despite Title VII covering the entire country. That federal law doesn’t apply to companies with less than 15 employees, meaning millions of workers at very small businesses must rely on state-level protections.

Workers might also choose to sue under state law instead of Title VII due to statute of limitations issues, the state law having more generous remedies, or a desire to keep their case in state rather than federal court.

Twenty-two states and the District of Columbia have express legal prohibitions on workplace discrimination based on sexual orientation and gender identity, while Wisconsin bars discrimination based on orientation only, according to the Movement Advancement Project.

The civil rights commissions in Michigan and Pennsylvania have said their anti-bias laws, which prohibit sex discrimination, protect LGBT workers, although courts there haven’t had their final say.

That leaves LGBT workers in about half the country without guaranteed state-level protections, beyond those who work at companies too small for Title VII coverage.

Persuasive Authority

While lawyers and law professors agreed that the Supreme Court’s decision in Bostock v. Clayton County will influence state courts, they differed on what extent it might persuade jurists across the U.S.

“States without express protections for sexual orientation or gender identity will see their courts adopt Bostock‘s historic holding on the broad meaning of sex discrimination,” said Shirley Lin, a New York University law professor who’s written about sex bias.

State courts have a long tradition of reading their anti-discrimination statutes expansively to favor coverage, Lin said.

Georgetown University law professor Nan Hunter said she’d be “extremely surprised” if any state court rejects the Supreme Court’s interpretation of sex discrimination, in part because that would produce two conflicting sets of anti-bias rules in the same state.

State courts will try to avoid creating a situation in which LGBT workers would lose their protections if the company dropped below 15 employees, said Hunter, the co-author of a casebook on sexuality and gender law.

Courts in conservative states have issued rulings saying they follow Title VII, and those states will likely yield to the federal law, said Jillian Weiss, an attorney with Outten & Golden who works with the First LGBTQ Workplace Rights Practice Group.

But some state courts “certainly” will reject the logic of the Supreme Court’s ruling, thus requiring civil rights laws to be changed for LGBT worker protections, said Anthony Michael Kreis, a professor at Chicago-Kent College of Law who focuses on equality laws.

Legislative Possibilities

The Supreme Court ruling could push more states and municipalities to pass protections for LGBT individuals, particularly in light of the holes in Title VII’s coverage, said Sam Schwartz-Fenwick, leader of the LGBT Affinity Group at Seyfarth Shaw in Chicago.

Earlier this year, Virginia adopted a law forbidding discrimination on the basis of sexual orientation, gender identity, and veteran status. The statue, effective July 1, allows for private litigation against employers with between five and 15 employees.

The gaps in Title VII would be better addressed through the passing of the Equality Act, the federal bill’s lead sponsors Sen. Jeff Merkley (D-Ore.) and Rep. David Cicilline (D-R.I.) said in statements to Bloomberg Law.

Jennifer Pizer, law and policy director of Lambda Legal, said it’s helpful to have legal protections embodied in statute, and the federal proposal would expand beyond Title VII and workplace protections to cover public accommodation providers such as hotels, restaurants, and health care facilities. The bill passed the House last May, but has since languished in the GOP-controlled Senate.

Many Republicans, in opposition to the bill, have argued religious freedom protections for businesses are at risk or that the proposal serves as a threat to parental rights to make medical decisions for transgender children. The measure would block businesses from using the Religious Freedom Restoration Act as a defense in LGBT discrimination cases.

“The Supreme Court decision does not change the fact that the Equality Act would be a bad law with horrific unintended consequences,” said Russell Moore, president of the Ethics & Religious Liberty Commission.

(Updated with comment from Lambda Legal in the 19th paragraph.)

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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