Sunday, March 26, 2023

Fired on Monday No More!

This past Monday, the Supreme Court put to bed the old adage that LGBTQ people had the right to get married on Sunday, but could be fired on Monday.

With the 6-3 ruling that LGBTQ workers were protected against employment discrimination, SCOTUS changed the face of the equality in America, not just in terms of employment but probably also in housing, education, pay equity, and government action.

It’s looking like queer people are now 100% equal in the eyes of the law.

The issue addressed in the ruling is whether or not the term sex in 1964’s Title VII includes sexual orientation and gender identity. The existing statute does not mention sexual orientation or gender identity, but in his opinion (conservative) Justice Neil Gorsuch said, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

This excerpt from his opinion is worth memorizing by every member of the LGBTQ community and our allies.

“In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.

The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.

Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman.

If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

That about covers it.



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