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LGBT discrimination is legal even if it’s wrong

| Thursday, October 10, 2019

This past Tuesday, the Supreme Court of the United States heard oral arguments in two sessions for a total of three cases concerning the applicability of Title VII’s employment discrimination prohibition as it applies to LGBTQ employees. If the employees win in this case, federal discrimination law will cover all cases of discrimination against LGBTQ employees nationwide. In states like Indiana, with no state law covering LGBTQ employment discrimination, federal law is the only legal remedy available for workers alleging this disparate treatment. The Supreme Court’s decision, then, could determine whether thousands of LGBTQ employees can be fired for their gender identity or sexual orientation. 

The Court does not decide policy, however. As was pointed out multiple times at the oral arguments, that’s Congress’s role, and Congress has never opted to explicitly include sexual orientation and gender identity in discrimination protection. The closest they’ve come is outlawing discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. The questions(s) before the Court right now can be understood as the following: Does “because of sex” in Title VII include “because of an employee’s sexual orientation or gender identity?” 

I’m willing to say it isn’t included. That isn’t to say I disagree with outlawing LGBTQ employment discrimination at the federal level; I would simply say that it isn’t currently illegal because one can discriminate based on someone’s sexual orientation without discriminating “because of sex.”

To take the best argument from Jeffrey Harris, the lawyer arguing for one of the employers in these cases, imagine that you had an employee’s description in front of you and you had to decide whether or not to fire the employee. Nothing about the employee’s name or description reveals anything about their gender, but somehow it becomes clear that they are in a same-sex relationship (It’s a stretch, but so are most lawyers’ hypotheticals.). If you fire the person because of their same-sex relationship (or the fact that they would desire such a relationship — that is, their sexual orientation), then you might not be discriminating on the basis of sex. In fact, you didn’t even know the sex of the person you fired. How can your decision then be based on their sex? 

The answer lies in the Court’s prior case, Price Waterhouse v. Hopkins. In that case, a woman was denied a promotion because of her perceived masculinity. The Court ruled, at risk of oversimplification for the sake of brevity, that sex-stereotyping was an illegal form of sex discrimination because it forced women and men to conform to the roles the employer believed was fit for women and men, respectively. 

Now imagine, again, that you are an employer who is shown a resume of an unknown employee. You have to decide whether to fire this employee. You again do not know any information about their gender, but you do know that they “do not conform to gender stereotypes.” Is this permissible? 

Under Price Waterhouse v. Hopkins, it certainly would not seem so. It would seem that this is sex discrimination even in a case where the sex of the employee is completely unknown to the employer. 

What is sexual orientation discrimination if not sex stereotyping? No matter one’s views on LGBTQ issues, it is difficult to argue that “should only be attracted to women” is not a common stereotype of men, and vice versa. If stereotyping is sex discrimination, then it certainly seems that sexual orientation discrimination is as well. 

Following this line of reasoning, it seems rather clear that gender identity discrimination would be similarly situated within sex discrimination. Again, regardless of one’s views of transgender issues, one must concede that “identifies as a man” is a stereotype of people assigned male at birth. If sex stereotyping is sex discrimination, gender identity discrimination is as well. 

But, is sex stereotyping really sex discrimination?

Certainly, harmful sex stereotyping is a problem that has plagued our society practically since we’ve had one. But is the commonly understood central holding of Price Waterhouse v. Hopkins, that discrimination based on sex stereotypes is discrimination based on sex, truly accurate?

I’m not convinced. To me, discrimination based on sex has to entail a causal connection between the person’s sex and the act of discrimination. Admittedly, I do not believe this to be the legal standard commonly applied in these cases; instead, I suggest this is the most natural reading of the statute at hand. I think for someone to be fired on the basis of their sex, the employer must be in the mindset of “Because of this person’s sex, I am firing them.” Of course, no employer would ever admit to this, but disputed motives are par for the course in employment discrimination cases. 

Overall, I look forward to months of speculation surrounding these cases and a set of complicated opinions in May and June which will enrage half of the nation engaged in our ongoing culture wars. There is nothing more exciting than Supreme Court season.

Vince Mallett is a junior at Notre Dame majoring in philosophy with a minor in constitutional studies. He is proud to hail from Carroll Hall and northern New Jersey. Vince can be reached at [email protected] or @vince_mallett on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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