Supreme Court Ruling A Victory for LGBT Workers

Wilma Consul:

The Supreme Court’s recent decision on Title Seven of the Civil Rights Act of 1964 clarifies how “sex” is to be interpreted under federal law. Today we’ll hear from two legal experts who will discuss what the ruling means for older workers.

Hi, I’m Wilma Consul with An AARP Take on Today. 

It’s the last week of June, and pre-pandemic, this would have been a time for parades, to celebrate Pride month for people who are lesbian, gay, bisexual and transgender or L-G-B-T. 

But even without the traditional grandeur, the community wins big in a landmark decision. On June 15th, the Supreme Court ruled that federal law bans employers from firing or discriminating against workers on the basis of their sexual orientation or gender identity.   

This ruling impacts older adults and thousands of AARP members who self identify as LGBT. 

Here to discuss the provisions of Title Seven of the Civil Rights Act of 1964 are two legal experts. First is Bill Rivera, who’s the senior vice president for litigation at the AARP Foundation. 

Welcome, Bill. 

Bill Rivera: Thanks.

Wilma Consul: 

And we also have Karen Loewy, senior counsel and seniors strategist at the Lambda Legal, an organization committed to achieving full recognition of the civil rights of LGBT people. Welcome, Karen. 

Karen Loewy: Thank you.

Wilma Consul:

Bill, let's start with you. There were three cases involved in this ruling. Who were the plaintiffs and why did the Supreme Court take these cases?

Bill Rivera:

Well, there were three different cases involving terminations of individuals simply for being homosexual or transgender. In one case, Gerald Bostock was fired for conduct unbecoming a County employee after he began participating in a gay recreational softball league. Altitude Express fired, the second plaintiff, Donald Zarda days after he mentioned being gay. And then a funeral home fired Aimee Stephens, who presented as male when she was hired after she informed her employer that she planned to live and work full time as a woman. This has been a series of cases that have come up through the courts that started to change how they interpreted the term because of sex, when it came to sexual orientation or gender identity. And the court took up the case, not only because I think it brings up an important civil rights question generally, but you also had what they call a split in the circuits, where the courts were ruling differently in the interpretation of Title VII's prohibition on sex discrimination.

Wilma Consul:

Karen, why is this ruling significant in terms of hiring and firing practices?

Karen Loewy:

The rulings incredibly important because Title VII of the Civil Rights Act of 1964 bars all forms of discrimination against workers, where any employer who has 15 or more employees across the country now has a very clear mandate from the Supreme Court that their LGBT employees cannot be discriminated against without breaking Federal Law. The three cases in particular here tell really important stories of workers being fired because of their LGBT identity. But this goes well beyond firing, to hiring, to the terms and conditions of employment, equal access to benefits in the workplace, making sure that LGBT employees are being treated fairly and equally to all other employees in the workplace.

Wilma Consul:

How else does this affect the workplace? How about pay?

Karen Loewy:

Absolutely. It requires equal work for equal pay, equal pay for equal work as the case may be. That's one of the terms and conditions of employment that you can't set payment levels that are discriminatory in nature. It really means that every decision an employer makes cannot negatively or adversely affect an employee because of their LGBT identity.

Wilma Consul:

Bill, AARP had a hand in this ruling. Your department filed an Amicus brief last year to support the three cases. First, explain the Amicus brief and then tell us how this affects, not just older LGBT workers, but all older workers. Why should they pay attention to this ruling?

Bill Rivera:

We are very proud that AARP and AARP Foundation were able to play at least a small part in the Title VII case by joining a number of other wonderful organizations to file an Amicus or Friend of the Court brief. That is a brief that is filed by individuals or organizations that are not representing either party in the case, but that are participating to provide additional perspectives on the issues. We certainly have among our membership at AARP, as we identified in our brief, approximately 900,000 AARP members who self-identify as LGBT, which makes us one of the largest, or have one of the largest LGBT constituencies at any US organization with a membership.

Wilma Consul:

Yeah, that's a lot.

Bill Rivera:

Pretty significant. And we certainly want to be sure that all of our efforts on behalf of older adults are benefiting all older adults, whether they are black, white, whether they are male, female, whether they are LGBTQ or otherwise, we really stand together on civil rights issues, especially on things as critical as employment

Wilma Consul:                                                                                                                                 

Karen, now this ruling is about workplace discrimination, but are there other forms of LGBT discrimination that are currently considered still legal?

Karen Loewy:

The ruling in this decision, that says that sex discrimination under Federal Law encompasses the discrimination that LGBT people experience applies as well to other laws that prohibit sex discrimination. Most critically, I would say, the Fair Housing Act, the Equal Credit Opportunity Act, the nondiscrimination protections in the Affordable Care Act and Title IX, which applies to discrimination in education. All of those laws have sex discrimination prohibitions, and when the Supreme court made clear that inherently discrimination based on sexual orientation or transgender status is a form of sex discrimination that carries over into these other areas of Federal Law as well.

Wilma Consul:

I've known a couple of gay people who've been church choir directors for years. And then once they got married, it was no longer okay for them to serve in those positions. Is this included, even if most of these jobs are usually volunteer work, where does that fall under?

Karen Loewy:

Title VII has a narrow exception written into it for religious organizations to limit their employees to those who share their religious belief. But I want to be clear, that's quite a narrow exception. It is not a giant loophole that anyone who claims, "Well, I have a religious objection," can therefore discriminate without any consequences. It is a narrow exception. When the Supreme Court issued these decisions last week, there's a section of this opinion that recognizes that there may be folks who are concerned about what happens to those with religious exempt objections to working with LGBT people. But what the Court said is that we have established principles in place to strike the right balance. And that doesn't mean that Title VII should not apply across the board in the ways that it always has, just because the court was recognizing that LGBT people are protected under the sex discrimination protection.

Wilma Consul:

Another question for you, Karen. If you are an LGBT employee who has been discriminated against, what should you do?

Karen Loewy:

The first is, you have to file a complaint. I would start within your own organization, within your own place of work. Because if your employer doesn't have notice that you've experienced this discrimination and have an opportunity to do something about it, it may be hard to hold them responsible for it. So by all means, start internally, file your complaints, follow your HR procedures to make sure that your employer has a chance to do something about it. If the employer fails to do something about it, or for example, in the case of a firing like, happened with these three individuals whose cases went to the Supreme Court, the next thing to do is to file a complaint with the federal agency that oversees employment discrimination claims, that's the Equal Employment Opportunity Commission.

Karen Loewy:

The second place that I would absolutely direct folks is to Lambda Legal's help desk. We have a nationwide help desk where we can connect folks with information and referrals to attorneys across the country. And that can be accessed lambdalegal.org/helpdesk.

Wilma Consul:

And so if people have questions, Bill, what resources can you point them to?

Bill Rivera:

Well, I would point them to the aarp.org/pride page on our website, which has a number of resources, including the Maintaining Dignity study and a number of other articles and resources are available on that website. And then I would certainly point them to Karen and her really, very informative web page and the number of resources that they make available as well as the documentation that they provide on cases that they bring forward is really quite commendable.

Karen Loewy:

The other really critical place that I would send folks for information is to our colleagues at the National Resource Center on LGBT Aging. It is a project of SAGE that is a regular collaborator and partner with both Lambda Legal and AARP in addressing specifically the needs of LGBT older adults, and they also have tremendous resources on their website.

Bill Rivera:

And we're also interested in hearing people's stories about their experience with discrimination in a variety of settings, as we look even more closely at the intersection of age and other classifications, such as LGBTQ individuals, and otherwise you can check out our website at aarpfoundation.org, and you can also feel free to share your stories litigation@aarp.org.

Wilma Consul:

Before we go, I want to just ask you, you guys have been working on these issues for a long time. How did it feel for you and where were you when you heard the decision on the Supreme Court on June 15th?

Karen Loewy:

Lambda legal, as an organization, and me personally as an attorney, have been working on the scope of these anti-discrimination protections for decades at this point. And there were folks who were surprised, who were really shocked that the Supreme Court reached this decision. And I will tell you that surprise was not the feeling that I had. Vindication is a better word for the feeling that I had. And that's only because over time courts that have really been willing to dig down and examine the nature of the discrimination that LGBT people face, have reached this exact same conclusion.

Karen Loewy:

And through just tremendous effort over time and consistent relentless advocacy by some of my colleagues that I've been lucky to be a part of, the Court reached the right result. So where was I? I was in my house as we all were part of a very regular morning of Supreme Court decision watching with my colleagues.

Wilma Consul:

And what about you, Bill?

Bill Rivera:

Well, I also was at home and in the middle of another virtual call, when I got in my email inbox started to light up with notes from my colleagues, and it was very exciting. I have about a dozen attorneys that I work with, and there was a lot of excitement and jubilation, I think, as we feel, and these cases, when you get a big decision on something as important as civil rights and employment free of discrimination. So I think we are always really so rewarded when we get to see something that is very important and meaningful to us as advocates and as an organization, but also to so many people to have the kind of impact that decisions like this make on the very real lives of people throughout the country.

Bill Rivera:

It really makes coming to work every day or staying at home and doing your work, as the case may be these days, all that much sweeter and just a real sense of pride and accomplishment and really gratitude that we get to have a role to play in some way on so many of these issues that we get to work with partners, like Karen and Lambda Legal, that we get to do so much great work on behalf of AARP members and other older adults throughout the country who really have already so many barriers and challenges.

Wilma Consul:

Bill Rivera provides strategic direction for AARP foundation litigation and Karen Loewy leads the voice on legal issues affecting LGBT seniors for Lambda Legal. Thank you both for joining us.

Karen Loewy:

Thanks so much.

Bill Rivera:

Thank you.

Last week, AARP hosted an LGBT-focused tele-town hall. Experts like Karen Loewy and Bill Rivera answered caller questions related to coronavirus and the recent Title Seven Supreme Court decision. We’ll soon publish the town hall on this podcast so you can listen to it whenever you want.

And, though the Supreme Court ruling has passed, sadly, workplace discrimination may still go unchecked -- especially for older workers. If you want to learn more about this issue, check out our podcast episode 50 - titled Age Discrimination Hits Jack and also the follow up, episode 51 - Jack Hits Back. 

Here’s a clip from the two-part series:

Jack Gross: He said, "Well where are you going?" And I said, "Well, I got stung. I'm going to go up and see grandma." He steps down, said, "I thought you wanted to be a farmer." "Well I do." He said, "Farmer doesn't go run in the house every time he gets a little bee sting. Walk it off and come back here and finish your job." Fade out with the laughter between Jack and Mike

If you liked this episode, please comment on our podcast page at www.AARP.org/podcasts or email us at newspodcast@aarp.org

Thanks to our news team.

Producers Colby Nelson and Danny Alarcon

Production Assistant Brigid Lowney

Engineer Julio Gonzalez

Executive Producer Jason Young

And, of course, my co-hosts Bob Edwards and Mike Ellison.

For An AARP Take on Today, I’m Wilma Consul.

Thanks for listening.