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Supreme Court Surprises with a 6-3 Decision in Favor of Gay and Transgender Workers

Supreme Court Surprises with a 6-3 Decision in Favor of Gay and Transgender Workers Background Decorative Image

Nearly five years ago, I was driving south on Highway 59 to visit a client’s facility.  At 9 a.m., I pulled over on the shoulder near Edna, Texas, got out my phone and went to https://www.scotusblog.com/ to check if the Supreme Court had issued its decision in Obergefell v. Hodges. Within minutes, I was scrolling through Justice Kennedy’s decision. When I reached the final words of Justice Kennedy’s opinion—“They ask for equal dignity in the eyes of the law”—I was sobbing.

Admittedly, yesterday’s 6-3 holding that the Civil Rights Act of 1964 protects gay and transgender employees from workplace discrimination did not have the same emotional wallop that Justice Kennedy’s gay marriage decision had five years ago. In contrast to Justice Kennedy’s much more emotional decision, the main point that Justice Gorsuch wanted to drive home in his opinion was that this was simply a matter of statutory interpretation. It didn’t matter if the legislators who passed Title VII had never dreamed that someone would try to apply Title VII to gay, lesbian or transgender workers. As far as Justice Gorsuch was concerned, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefits.”

Yesterday’s decision may also be less remarkable because so many U.S. corporations and big law firms have already demonstrated their commitment to equality for LGBTQ+ employees, regardless of what the law might require. The most recent Corporate Equality Index from the Human Rights Campaign Foundation identified 686 major employers and law firms—including my own—that earned a 100 percent rating and the designation of being a “Best Place to Work for LGBTQ Equality.” These are employers that have ensured that LGBTQ+ workers and their families receive equitable benefits and have demonstrated support for an inclusive culture, including by providing coverage for transition-related care.

Nevertheless, no one should minimize yesterday’s decision. The fact that the Supreme Court’s server crashed several seconds after the decision was issued—something that I have never heard of happening before—suggests that more people than the usual Supreme Court watchers were trying to get a copy of the decision. Moreover, even though corporate America has become much more welcoming to gays and lesbians, discrimination against LGBTQ+ workers still happens. In fact, in the three cases before the Supreme Court, the employers did not even dispute that they had terminated the employees for being gay or transgender. And while I think far more people will be celebrating this decision that comes right in the middle of Pride month, employers should beware that there will be some employees who will be upset by the decision. Describing the majority decision as “wrong” and “arrogant,” Justice Alito warned that the decision “is virtually certain to have far-reaching consequences” and went on to discuss potential issues with bathrooms, locker rooms, women’s sports, housing, and healthcare benefits, just to name a few.

While I may personally disagree with Justice Alito, I recognize that there is still a significant minority of well-meaning people who feel the same way as he does. Employers should be especially sensitive to employees’ genuinely held religious beliefs concerning gay or transgender employees—and even acknowledge that the employees are entitled to those views.  Not everyone has to join in workplace-sponsored Gay Pride events. At the same time, employers should take a firm stand against any behavior that could be construed as harassing or creating a hostile environment for gay or transgender employees.

I close this post on a personal note. When I came to Vinson & Elkins nearly 30 years ago, I was the first and only openly gay lawyer at my law firm. In 1990, there were only two states—Wisconsin and Massachusetts—that had laws prohibiting private employers from discrimination based on sexual orientation. Within a few years, Vinson & Elkins became the first firm in Texas (or the South) to have a non-discrimination policy that included sexual orientation, and in 1995, it became the first firm in Texas to offer health insurance for same-sex domestic partners.  They did it long before it was the cool thing to do. Best of all, I did not remain the “only gay in the village” for very long.

Happy Pride Month to all our readers.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.