Skip to main content

The United States Supreme Court Is Set to Determine If Federal Law Prohibits Discrimination Against LGBTQ Workers


With two issues all teed up for the United States Supreme Court to address, legal scholars and those in the LGBTQ community had been chomping at the bit, waiting to see if the Supreme Court would take up a case (or cases) to settle a dispute among circuits over whether federal law protects LGBTQ workers from workplace discrimination.  And for those wondering, on April 22, the Supreme Court granted certiorari in three separate cases that will address the matter:  Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC.

Before we get to those three grants of certiorari, let us take a step back and look at the big picture.  For those unaware, at least two circuits (the Second and Seventh Circuits) along with the EEOC have found that federal workplace laws prohibit discrimination based upon a worker’s sexual orientation.  The other circuits (and President Donald Trump era Department of Justice) have found no federal law provides workers any protection from this discrimination.  As for whether federal workplace laws prohibit discrimination based upon a worker’s gender identity, the Sixth Circuit, EEOC, and the President Barack Obama era Department of Justice have found that it does.  The other circuits (and President Trump era Department of Justice) have found no federal law provides workers any protection from this discrimination.

Although there is not a “major” split among circuits on the issue, the fact that there is at least a split among circuits gives the Supreme Court grounds to resolve the disagreement and set a precedent for all circuits to follow (which will likely happen with the granting of certiorari on Monday.)  Now keep in mind that with a Supreme Court that has started to trend more conservative as of late, there is no guarantee federal workplace law would be extended to provide workers protection from these types of discrimination.  In fact, the Supreme Court had previously denied certiorari less than a year and a half ago in Jameka Evans v. Georgia Regional Hospital, a case that raised similar questions as Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes.  When the denial of certiorari occurred in Georgia Regional Hospital, Justice Anthony Kennedy was on the bench.  However, he has since been replaced with Justice Brett Kavanaugh, who many expect will not be as receptive to extending protections to LGBTQ workers from workplace discrimination.

With that being said, all it takes is one case with favorable facts for the Supreme Court to flip this matter on its head.  Until the Supreme Court issues an opinion (or opinions) on the matter, employers and employees alike should consult the relevant caselaw in their circuit to determine the extent (if any) of federal law and discrimination protection in regard to these two situations.


For additional information:  https://news.bloomberglaw.com/daily-labor-report/do-not-publish-supreme-court-can-settle-split-on-lgbt-bias-in-the-workplace

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...
Post a Comment
Read more

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations
Post a Comment
Read more

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...
1 comment
Read more