In a surprise, Supreme Court rejects LGBTQ workplace discrimination

As one observer noted this morning, "As of just a few minutes ago, it was possible to get married on Sunday and legally fired on Monday -- but no more."
Image: The U.S. Supreme Court
The U.S. Supreme Court.Sarah Silbiger / Reuters file
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By Steve Benen

Under federal law, American employers can't discriminate on the basis of race, sex, age, religion, national origin, disability, or genetic information. But there are no such civil-rights protections related to sexual orientation or sexual identity.

Democrats have championed measures like the Employment Non-Discrimination Act (ENDA) to remedy the problem, but Republican leaders have repeatedly rejected those efforts. "People are already protected in the workplace," then-House Speaker John Boehner (R-Ohio) said in 2013, pointing to legal protections that simply did not exist.

At least, the protections didn't exist before today. In a surprise, the U.S. Supreme Court this morning ruled that discrimination on the basis of sexual orientation and transgender status is illegal.

In decisions on two separate cases, the court said Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate because of a person's sex, among other factors, also covers sexual orientation and transgender status. It upheld rulings from lower courts that said discrimination based on those factors was a form of sex discrimination.

The cases were Bostock v. Clayton County, and Altitude Express Inc. v. Zarda. The 172-page ruling is online here.

NBC News' Pete Williams explained on the air this morning, "As of just a few minutes ago, it was possible to get married on Sunday and legally fired on Monday -- but no more."

It's a breakthrough moment for American civil rights, made all the more notable because of the current makeup of the high court: because there is a five-member conservative majority, many legal observers expected the Supreme Court to go the other way on this question.

And yet, the court didn't just issue a surprisingly progressive decision, it did so in a 6-3 ruling.

In fact, Justice Neil Gorsuch, tapped for the high court by Donald Trump, wrote the majority opinion. He was joined by Chief Justice John Roberts, another member of the conservative bloc, along with Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear," Gorsuch wrote for the majority. "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

In the minority, of course, were Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas. Kavanaugh -- Trump's other justice -- wrote a dissent, as did Thomas.

Kavanaugh's dissent did not come as a surprise, but it did include some notable praise for the movement to advance LGBTQ rights -- even as he voted to allow workplace discrimination against the entire community -- which further signaled an shift on the bench.