HR Management & Compliance

Brett Kavanaugh: How Will LGBTQ-Based Antidiscrimination Policies Fare?

The confirmation hearings for Brett Kavanaugh have finished (pending new hearings surrounding sexual misconduct allegations), and they have been filled with political strife already. I recently sat down with Mark Phillis, an attorney at Littler Mendelson, to discuss some of the fears that the LGBTQ community has about the future of workplace discrimination laws.

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The Situation

Phillis began our talk by explaining that the Equal Employment Opportunity Commission (EEOC) takes the position that prohibition of sex discrimination in Title VII of the Civil Rights Act “applies to claims of discrimination based on sexual orientation, gender identity and expression as well.” He went on to say that the EEOC takes that position in charges that it files, as well as in cases that it is filing in court. That position has also recently been adopted by two federal Courts of Appeals in en banc decisions. In each of the cases, the appellate court ruled that sexual orientation discrimination is prohibited by existing law.

Phillis also explained that these decisions have created a split among the appellate courts. In another recent appellate case in which this argument was made unsuccessfully, the U.S. Court of Appeals for the 11th Circuit declined to grant a request for rehearing en banc.

What does all this mean? The EEOC will continue to review, investigate, and litigate cases involving claims of discrimination filed by LGBTQ employees, and LGBTQ advocacy organizations will continue to try to convince other Courts of Appeals to find that these workers are protected by Title VII.

The Discrimination Concern

Phillis explained that the 11th Circuit case had made it all the way to the Supreme Court, “but the Supreme Court declined to hear it.” He continues, “because of the number of cases pending across the county, and because we have a difference of opinion resulting in a circuit split, the Supreme Court may be more likely to take one of these cases up.” In other words, if Kavanaugh is confirmed, he will likely sit in the decision on one of these cases.

There are many experts, lawmakers, and LGBTQ advocates who have concerns about the future of these protections in the workplace around the country because of Kavanaugh’s likely confirmation to the Supreme Court. Those concerns were not assuaged during Kavanaugh’s September 6 response to questions put forth by Senator Kamala D. Harris (D-California) surrounding the 2015 Obergefell v. Hodges decision.

According to Phillis, Kavanaugh has not been involved in any cases that tackle the issue of LGBTQ rights. I asked Phillis what we could glean from other cases that were related to protections of LGBTQ members in the workplace. Phillis says that advocates were concerned when he was nominated to become an appellate court judge: “some organizations that have taken anti-LGBTQ positions were very much in support of his nomination.” As an appellate court judge, he has, in fact, taken an expansive view of the protections afforded by the Religious Freedom Restoration Act (RFRA), which some LGBTQ advocates fear may reflect how he may rule if cases like last term’s Masterpiece Cakeshop case come before the court.

Additionally, Phillis notes that some have pointed out that Kavanaugh has “expressed concern about the degree of deference that courts give to the interpretations of [statutes] by administrative agencies.” Phillis explains that many of these recent decisions have “been brought about after the EEOC internally adopted the interpretations that provides protections to LGBTQ individuals.” While the Courts of Appeals did not rely upon deference to the EEOC’s interpretation of the law, the EEOC likely would be asked to weigh in on the issue if the courts were to hear one of these cases. The concern is that Kavanaugh has expressed the view that interpretation of the law by agencies like the EEOC should be given very little weight.

The Bottom Line

Many organizations know the value of inclusiveness and diversity. Our editors have explained how just following the laws, guidance, and court interpretations surrounding diversity has never been enough to create a culture of inclusiveness. I asked Phillis what might happen if the Supreme Court were to rule that there are no workplace protections for LGBTQ individuals. Phillis said, “we represent employers in employment disputes, and employers recognize in today’s war for talent, maintaining an inclusive workplace matters. Employers have in many ways led the way in extending protections to LGBTQ employees even in states where there are no protections.”

In its most recent survey of corporate policies, the LGBTQ advocacy organization the Human Rights Campaign (HRC) reported that 83% of Fortune 500 companies have policies that prohibit discrimination and harassment based on sexual orientation and gender identity and expression.

Phillis mentioned that there are 20 states that protect employees against discrimination based on their sexual orientation, gender identity, and expression and two additional states that protect employees based on their sexual orientation alone. “Even in the absence of protections under federal law, those state laws and hundreds of local ordinances will remain in effect.”

This article was written with editorial assistance from Mark Phillis.