For 55 years, federal law has banned employment discrimination on the basis of sex. If you’re a woman, you can’t be denied a job because an employer thinks it’s not suitable for women. The law hasn’t always been obeyed or enforced as it should be, but the basic rule is clear.
What isn’t clear is a question now before the U.S. Supreme Court: whether the 1964 Civil Rights Act also applies to discrimination on the basis of sexual orientation. Until now, it hasn’t been interpreted that way. So a company can’t refuse to hire someone because she’s a woman, but it can refuse to hire her because she’s a lesbian.
This is a strange state of affairs — so strange that a lot of people don’t believe it. A recent Reuters/Ipsos poll found that only 23% of Americans realize that federal law does not protect gays and lesbians from discrimination. Nearly half assume it does.
It’s not a crazy assumption. After all, the Supreme Court has recognized a constitutional right to same-sex marriage. The U.S. military has allowed openly gay people to serve since 2011. But the reality is that as far as federal law is concerned, gays have the right to marry partners of the same sex, and their bosses have the right to fire them when they get back from their honeymoon.
One of the cases before the court concerns a county child welfare services coordinator in Clayton County, Georgia, just south of Atlanta, who lost his job after joining a gay softball league. The county asked a court to dismiss his lawsuit on the ground that the federal law doesn’t cover discrimination against gays.
But his lawyers say it does, and some courts agree. In 2017, the Seventh Circuit Court of Appeals in Chicago found that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” A woman who is penalized for being attracted to women, after all, would not be penalized for that preference if she were a man.
The rebuttal is that when Congress passed the law in 1964, it had no intention of protecting gays. Representing the Trump administration, Solicitor General Noel Francisco stressed this point, noting that Congress has repeatedly declined to pass legislation adding sexual orientation to the protected categories.
He also ventured that if an employer refuses to hire both gays and lesbians, it is treating both sexes equally, because homosexuality is disqualifying for both men and women. This is a bit like saying that a law against interracial marriage doesn’t amount to racial discrimination because it applies equally to blacks and whites — a ridiculous view that the court rejected in 1967.
As Justice Elena Kagan said during oral arguments on the case, the pertinent question is: “Would the same thing have happened to you if you were a different sex?” If the answer is no, then discrimination against lesbians is just another way of discriminating against women.
Conservatives insist it would be a great overreach to expand the Civil Rights Act to cover LGBT people. The proper way to bar such discrimination, in their view is not for the court to reinterpret the law — which Justice Samuel Alito said would mean “acting exactly like a legislature” — but for Congress to pass new legislation for that purpose.
Great idea, and most people on Capitol Hill are willing. In May, the House passed the Equality Act, to protect gays in employment, housing, credit, education and more.
The problem is that conservatives who say legislation is the right approach don’t endorse such legislation. Only eight Republicans voted for the Equality Act. There is little chance that Republican leader Mitch McConnell will allow a vote on the Senate version.
The usual objection is that such a law would violate the rights of people whose religion condemns homosexuality. By that logic, the existing law violates the rights of Christians whose faith condemns other religions. But no one believes Protestant employers should be allowed to deny jobs to Catholics.
This is one of those cases where the GOP is heedless to public sentiment. Reuters/Ipsos poll found that 65% of Americans support a law to protect LGBT people from discrimination. Among registered Republican voters, 47% are in favor and only 21% opposed.
Maybe Congress, not the Supreme Court, is the best body to resolve this matter. So maybe Congress should stop stalling and get it done.