The blog of the Urban Institute
June 22, 2020

The Supreme Court Reaffirmed LBGT Protections against Discrimination. How Can We Ensure Those Rights Are Realized?

June 22, 2020

Amid a national moment that echoes the civil rights movement of the 1960s, with hundreds of thousands of protestors in the streets demanding racial equality and systemic reform, the Supreme Court issued a decision last Monday reaffirming the legacy of that movement. “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” Justice Neil Gorsuch wrote in the majority opinion for the court’s 6-3 decision. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

The court’s landmark decision—that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on sexual orientation and gender identity—reaffirmed that “our anti-discrimination laws protect everyone,” said Jenny Yang, former chair and commissioner of the US Equal Employment Opportunity Commission (EEOC) and senior fellow at the Urban Institute.  “Although historically, many courts had carved out LGBTQ individuals from protections against discrimination, the Supreme Court held that the express terms of the statute allow no such exclusion.”

The Supreme Court’s unequivocal decision brings momentum to decades of work to ensure equality for LGBT workers nationwide and provides a powerful foundation for extending similar protections to other facets of life.

How Public Opinion and Precedent Informed the Supreme Court’s Decision

Title VII of the Civil Rights Act bans employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” The language does not explicitly list sexual orientation or gender identity, but the Supreme Court’s decision last week holding that “sex” encompasses both terms is consistent with Supreme Court precedent and the EEOC’s interpretations of the act.

In 2012, the EEOC held in Macy v. Department of Justicethat discrimination against a person for being transgender is discrimination because of sex. In 2015, during Yang’s tenure as chair of the EEOC, the commission in Baldwin v. Department of Transportation(PDF) explained that discrimination based on sexual orientation is necessarily sex discrimination because the concept of sexual orientation has an “inescapable link” to sex.

The EEOC recognized that when lower courts interpreted the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay, or bisexual individuals who have experienced discrimination on the basis of sex, those courts inserted a limitation into the text that Congress did not include. Historical cultural biases had prevented courts from applying Title VII in a straightforward way as written. As Justice Anthony Kennedy wrote in the 2014 marriage equality opinion, “[the] nature of injustice is that we may not always see it in our own times.”

Today, public opinion has shifted by orders of magnitude. Most Americans believe it should be illegal to be fired for your sexual orientation (83 percent) or for being transgender (79 percent). The Supreme Court’s decision eliminates uncertainty around federal protections for LGBT workers, which is especially consequential for the 52 percent of LGBT people who live in states that do not ban discrimination on sexual orientation or gender identity.

The principles the court affirmed should have far-reaching impact across many facets of life, including health, housing, and education,” Yang said. The decision could prompt the US Department of Health and Human Services to revisit rollbacks (that the agency made three days before the decision) to 2016 provisions preventing health care discrimination against transgender people, or it could inform a new rule the Department of Housing and Urban Development will soon propose that would allow homeless shelters to consider someone’s biological sex rather than gender identity when making accommodation decisions.

Changing Systems to Ensure Workers Can Use These Rights

Although the Supreme Court’s ruling could have a profound impact in promoting equality for LGBT Americans, important work lies ahead to make rights meaningful in systems throughout the nation. As of 2018, only 46 percent of LGBT workers have come out in their workplace, indicating that many feel uncomfortable or fear retaliation for being themselves. And if they are discriminated against, many will be reluctant to pursue a claim.

Over 55 years after the passage of the Civil Rights Act, many workers continue to face ongoing and systemic discrimination. More than 60 percent of US employees say that they have witnessed or experienced discrimination based on age, gender, race, or LGBTQ status in the workplace. Yet the majority of discrimination claims go unaddressed: approximately 70 percent of employees who have faced harassment never even issue an internal complaint.

“At the root of the problem is an enforcement system that places far too great a burden and risk of addressing discrimination on workers,” Yang explained. Under our current system, the primary way that Title VII is enforced is through individual workers coming forward and filing complaints when they experience discrimination. With a difficult economic recovery from the COVID-19 pandemic ahead, this challenge will be exacerbated: workers may face increased discrimination but be less likely to raise concerns because of labor market instability.

“We are in a critical moment to reexamine workplace discrimination and the need to create a more effective and just system of enforcement,” Yang said. “Overwhelmingly, people will not use a formal reporting process because of real risks of retaliation and harm to their careers. Policymakers and employers need to rethink our policies and processes and understand that just because there aren’t complaints, that doesn’t mean there aren’t problems.”

Workers face an uphill battle when they of coming forward because proving discrimination in the workplace is no easy task. Even when an employer takes an adverse action because of a worker’s sexual orientation or gender identity, especially since most workers face at-will employment, employers can always claim that any other reason was the real cause, Yang said.

Researchers at the Urban Institute have highlighted discrimination in the rental housing market with matched-pair testing, finding that housing providers are less likely to tell gay male renters or transgender renters about available units. Yang believes greater proactive efforts by government, employers, unions, and worker organizations are needed to root out discrimination for more systemic change.

“Across the country, people are now seeing inequality that has existed for a long time,” Yang said. “And the momentum building provides a historic opportunity to revitalize our employment systems.”


Ben Falk and Michaela Morrissey contributed to this post.

Demonstrators in favor of LGBT rights rallied outside the US Supreme Court in Washington, DC, October 8, 2019, as the court held oral arguments in three cases dealing with workplace discrimination based on sexual orientation. (Photo by SAUL LOEB/AFP via Getty Images)

SHARE THIS PAGE

As an organization, the Urban Institute does not take positions on issues. Experts are independent and empowered to share their evidence-based views and recommendations shaped by research.