Three cases headed to the Supreme Court of the United States on Tuesday will determine if LGBTQ people are protected under federal employment discrimination laws. The arguments are particularly significant in Pennsylvania, one of the 28 states that do not have workplace protections for LGBTQ employees.
Two cases brought by Donald Zarda and Gerald Bostock are about the men’s termination, reportedly because they were gay. Zarda, who died five years ago, was a skydiving instructor who would reveal he was gay to make female clients feel more comfortable; Bostock was a social worker who claims he was fired because he was gay. The third case is that of Aimee Stephens, a transgender woman who says she informed her funeral home employer of six years that she was transitioning and would start wearing female outfits to work.
“The owner very clearly testified later that it was specifically because Stephens wanted to dress up as a woman and that he was opposed to that as a devout Christian and felt it would violate God's commands,” said Taylor Gillan, associate attorney at the law firm Feinstein Doyle Payne & Kravec.
A federal judge in Michigan sided with the funeral home, but the U.S. Court of Appeals for the 6th Circuit reversed, according to SCOTUSblog. Zarda and Bostock’s cases followed a similar path.
The justices will have to determine if sexual orientation and gender expression fall under federal discrimination laws, known as Title VII of the Civil Rights Act of 1964. The law “prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.”
The Supreme Court ruled in 1989’s Price Waterhouse v. Hopkins decision that it is unlawful to discriminate — whether it be firing or denying promotions — based on an employee not fitting into the stereotypical gender presentation. The plaintiff, Ann Hopkins, didn’t dress or act in a traditionally feminine way, which she claimed cost her promotions. Gillan said the case set a precedent that sex stereotyping is a form of sex discrimination.
Gillan said Stephens could use a similar argument: that by presenting as a woman, Stephens doesn't fall into what the employer "typically views as the correct way a man" should act, and was thus a victim of stereotyping. Gillan said Stephens could also argue that she was a victim of sex discrimination because "if [she] had been been assigned a different sex at birth, it wouldn't have been a problem with her employer."
A 1998 case, Oncale v. Sundowner Offshore Services, also deals with Title VII and the fluidity of such laws. In it, the court determined that the law’s language applied to same-sex workplace harassment. The ruling relies on the text of the law, rather than the legislature’s original intention when drafting it. Justice Neal Gorsuch is known “as somewhat of a textualist,” Gillan said, which could sway his vote toward the plaintiffs because it would mean he interprets the language of the law rather than reading into intent in 1998.
The court’s ruling of these cases could directly impact working LGBTQ Pennsylvanians because there is no explicit law protecting them in much of the state. More than 50 municipalities have adopted local ordinances that provide these protections, but labor and employment attorney Mariah Passarelli, of the law firm Cozen O’Connor, said workers who live outside of those communities can still be fired based on their orientation or identity.
An adverse Supreme Court ruling, Passarelli said, "would allow employers to treat people different on the basis of sexual orientation and gender identity without, sort of, hiding the motivation for that difference of treatment. They could do it very lawfully.”
Currently LGBTQ employees in the state can file discrimination claims with the Pennsylvania Human Relations Commission, although ACLU deputy legal director Mary Catherine Roper said it “hasn’t been tested a lot.” If the federal Title VII protections disappear, Roper said workers will likely file more on the state level because they will no longer fit elsewhere. But the commission's legal purview doesn’t explicitly include LGBTQ people.
If the Supreme Court sides with the employees, Passarelli said it would define clearly that LGBTQ individuals are protected by federal law and cannot be discriminated against at work. “That law would apply everywhere and override local and state laws,” Passarellisaid.
An amendment to Pittsburgh’s non-discrimination law, passed in July, added gender identity and gender expression; Allegheny County passed an ordinance in 2009. In 2016, the U.S. District Court for the Western District of Pennsylvania in Pittsburgh ruled that sexual orientation discrimination is a form of sex discrimination.
But state Rep. Dan Frankel wants to see protections go further and has repeatedly introduced legislation, called the Fairness Act, that would cover all of Pennsylvania.
“[Currently] people can be denied access to public accommodations, be denied housing and access to educational opportunities as well,” said Frankel, a Squirrel Hill Democrat. “That just is an embarrassment to me and an injustice that we shouldn’t tolerate.”
Frankel's legislation would amend the existing Pennsylvania Human Relations Act and include sexual orientation and gender identity and expression. A February 2019 memo about the bill begins:
“Today a Pennsylvanian can get married on Saturday and be fired on Monday for putting up a wedding picture.”
Frankel said despite past failed attempts to pass the legislation, he’s hopeful for bipartisan support in this legislative session.