LGBTQ and Workplace Discrimination Law May Never Be the Same

By William Vogeler, Esq. on May 02, 2019

LGBTQ workplace rights have been a puzzle for employers and the courts, but all of that is about to change -- forever.

The U.S. Supreme Court has agreed to decide whether Title VII prohibits discrimination based on sexual orientation and gender identity. It was necessary because of a conflict in the federal circuits. Of course, the real conflict is happening in the workplace. Whatever the High Court rules, it is not going to be easy for employers, employees, and their attorneys.

'Not Optimistic'

While some circuit courts have said Title VII includes sexual orientation, others have disagreed. It's a classic showdown ready for the Supreme Court. Jeff Hirsch, writing for the Workplace Prof Blog, is not optimistic about the future decision. Actually, it's worse than that.

"To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement," he writes. Hirsch, a professor at UNC School of Law, writes and teaches on labor and employment issues. Naturally, he see things from an academic point of view. He says the LGBTQ issue is "really interesting" from a legal perspective. "It involves congressional purpose and history, statutory interpretation, and policy consequences that can go in different directions depending on its application in other cases -- and that can result in political outcomes that advocates may not always like," he says.

On the Bright Side

In boots on the ground lawyer terms, that means there will be some backlash. As if LGBTQ issues in the workplace weren't already complicated, even law firms that advise companies have had a problem. On the bright side, times are changing. In a survey of 130 law firms, most reported an increase in the number of attorneys who identify as lesbian, gay, bisexual, and transgender. The survey says their growth is outpacing overall growth in lawyer-headcount. From that perspective, the next Supreme Court term should be "really interesting." How will LGBTQ lawyers advise their clients when it comes to Title VII?

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