On Oct. 8, the United States Supreme Court will hear three cases of monumental importance. Plaintiffs will argue gay and transgender employees should be covered under Title VII of the Civil Rights Act of 1964, meaning employers should not be permitted to discriminate against persons based on their sexual orientation or gender identity. Twenty-seven states (including North Carolina) currently allow employers to choose not to hire a person, or choose to fire a person, based on these classifications.
Some believe the Court intentionally chose to hear and decide the Title VII cases before hearing a public accommodation case. Over the last two years, the Court declined to rule on the merits of public accommodation challenges involving gay persons. One such case involved a baker who refused to design and provide a wedding cake to a same-sex couple, arguing doing so violated his sincerely held religious belief. This refusal violated Colorado’s public accommodation anti-discrimination statute, which stated shopkeepers were not permitted to discriminate against any customer.
How the Supreme Court rules on the rights of gay and transgender employees in the workplace under Title VII could have a profound effect on a future case when the Court addresses the rights of gay and transgender customers in the public arena.
It appears Congress did not consider the coverage of gay or transgender persons under the Civil Rights Act of 1964 when it was initially passed. However, the evolution and refining of the act signifies it was to be interpreted broadly, and not to remain a static document. The intent of Congress was “to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of …sex.” The Title VII plaintiffs in the three cases slated for Oct. 8 argue that gay and transgender persons are included in the category of “sex.” One of several cases to support this argument is Oncale v. Sundowner Offshore Services, Inc. In an opinion authored by Justice Antonin Scalia, the Court held that a sexual harassment claim could be brought under Title VII by one man against another.
A study of the Supreme Court’s recent evolution of constitutional law further supports the position of the plaintiffs. When Obergefell v. Hodges (2015) held same-sex couples could marry, Justice Anthony Kennedy opened the opinion with this line: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” The Court reiterated that fundamental liberties protected by the due process clause of the Fourteenth Amendment “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”
Drawing on the principles espoused in Obergefell, it seems axiomatic that to express one’s identity, a fundamental liberty protected by the due process clause, could lead one to be intentionally discriminated against under Title VII. In other words, if one’s ability to exercise a liberty interest might result in the quashing of his dignity, there is no real protected liberty interest. This has been referred to as the “married on Saturday, fired on Monday” situation.
In its upcoming cases, the Court should make clear that gay and transgender persons are covered by Title VII in the workplace. Thereafter, the Court would then have to consider whether a business not permitted to discriminate against its gay employees would still be allowed to discriminate against its customers.
Order matters — and the law in this area has evolved in a logical manner. Over the last 15 years, the court has laid the groundwork to now consider issues related to employment and public accommodation. Addressing the rights of the employee with established Title VII law and the associated liberty, identity, and dignity interests developed by the Court will then squarely inform a future Court’s examination of issues related to public accommodation.