Bloomberg Businessweek - USA (2019-06-24)

◼ BUSINESS Bloomberg Businessweek June 24, 2019

DATA:MOVEMENT ADVANCEMENT PROJECT

19

WhyItCould

Bethe

Worstof

Times,Too

● Afterdecadesoflegalwins,theU.S.Supreme
CourtmayerodeLGBTQworkerprotections

Fortwodecades,mostoftheLGBTQmovement’s
highest-profilevictorieshavecomeattheU.S.
SupremeCourt.In 2003 thejusticesissueda rul-
inglegalizinggaysexthatdissentingconservative
JusticeAntoninScaliawarnedwouldsetthestagefor
nationwidelegalizedgaymarriage.Within 12 years,
hispredictionwasrealized.Thecourtmademar-
riageequalitythelawoftheland—reflectingand
acceleratinga seachangeinstraightAmericans’
viewsandtreatmentoftheirLGBTQneighbors.
ButnextyearthehighcourtcoulddealLGBTQ
peoplea painfulblow:wipingoutlower-courtrul-
ingsthatshieldthemfromgettingfiredforwho
theyare.Ina trioofcasesthiscomingterm—involv-
inga childwelfareworker,a skydivinginstructor,
anda funeraldirector—theSupremeCourtwillhear
argumentsonwhetherit’slegalforbossestodis-
criminateagainstLGBTQemployees.Contraryto
whatmanyAmericansnowassume,nofederallaw
explicitlyprohibitsfiringworkerssimplyforbeing
gayortransgender.Nordothelawsofmoststates—
includingsomepopulousonessuchasTexasand
Ohio.(Only 21 states and Washington, D.C., have
laws that explicitly prohibit private companies from
firing workers for being gay or trans; another one
restricts anti-gay firing but not anti-trans dismissals.)
Jimmie Beall learned that the hard way in 2003,
when she was abruptly terminated from her position
as a public school teacher in London, Ohio, a few
weeks after receiving a glowing evaluation. Beall, a
lesbian who taught government to high schoolers,
says she learned from local parents about rumors
she was fired for being gay and was shocked to learn
no law specifically prohibiting that. An email later
surfaced from the superintendent to the school
board alluding to Beall’s sexual orientation while
discussing not bringing her back for another school

year. “I thought, They can’t do that, because that

would be illegal—there’s protection against discrim-

ination,” says Beall. “It never occurred to me that

there wasn’t.”

Despite the lack of explicit protection for LGBTQ

workers, Beall filed a lawsuit arguing that because

she was a public employee, firing her for her sex-

ual orientation violated the Constitution. In 2006,

after a new superintendent took over and a judge

ruled Beall’s case could proceed, the school dis-

trict agreed to settle the case and establish a non-

discrimination policy. But Beall says she assumed

that before too long the state of Ohio or the federal

government would prohibit anti-gay discrimination

across the board. “I never imagined that, this many

years later, we still would not have the same protec-

tions that everybody else already has.”

In recent years, some courts have ruled that the

1964 Civil Rights Act’s ban on sex discrimination also

implicitly prohibits bias based on sexual orientation

or gender identity. “When a male employee is fired

because he has a husband and he would not be fired

if he were a woman who had a husband, then he was

fired because of his sex,” says Jennifer Pizer, law

OntheBasisofOrientationorIdentity

Stateswithnolaw

specificallyprohibiting

discriminationbasedon

orientationoridentity

States with laws prohibiting

discrimination based

on sexual orientation or

gender identity

Status of LGBTQ employmentdiscriminationlaw

States with no such law

but within a federal circuit

that’s interpreted the U.S.

ban on sex discrimination

to restrict bias based on

orientation or gender

identity

Wisconsin law prohibits

discrimination based on

orientation but not identity

Michigan and

Pennsylvania interpret

state law prohibiting sex

discrimination to include

orientationandidentity