WASHINGTON—The nation’s largest unions and the nation’s largest labor federation are backing a ban on employer discrimination against lesbian-gay-bisexual-transgender people – a ban bosses are challenging in top cases at the U.S. Supreme Court.
And the Oct. 8 argument over whether bosses can discriminate against and fire LGBTQ people solely because of their sexual orientation or gender preference isn’t the only big-ticket civil rights case the justices will hear in the next six weeks.
The other will come up in early November, as Comcast challenges the wide-ranging ban on all types of discrimination written into the Reconstruction Era’s 1866 Civil Rights Act and its famous Section 1981, which lets individuals and firms sue against business racism.
And in both cases, the GOP Trump administration is arguing on the other side, for discrimination.
The tangle over LGBTQ job discrimination hits the High Court the day after it starts its 2019-20 term. Four separate lawsuits, consolidated into one long hearing, will force the court to consider whether employers can discriminate against LGBTQ people strictly because of their sexual or gender preference.
That’s illegal under the 1964 Civil Rights Act’s ban, in its famous Title VII, on employment discrimination based on sex, declare the AFL-CIO, both big teachers unions, and a combined brief from the Service Employees, the Teamsters, and Jobs With Justice. So do other allies of LGBTQ people.
Title VII also bans discrimination based on race, color, religion or national origin.
The section 1981 case will come up in November. It outlaws virtually all types of racial discrimination by businesses in making contracts.
Both cases are important for the future of civil rights and human rights in the U.S., which have been frequently under attack by Trump, right-wing Republicans and their ideological think tanks and, in the second case, the corporate class.
In the October case, LGBTQ “members of AFL-CIO-affiliated unions…are entitled to” the 1964 Civil Rights law’s “protections, either individually or through a collective bargaining agreement that expressly covers statutory discrimination claims,” federation counsel Matthew Ginsburg told the justices.
The Supreme Court, the federation reminded the justices, has long ruled firms guilty of sexual discrimination when they fire or discipline someone not only because of sex but because the worker apparently defies “social or emotional traits” associated with sex. In other words, when the worker doesn’t fit the boss’s stereotype.
“When an employer makes a decision based on an employee’s non-conformance” with the stereotypes, that’s discriminating based on sex, the labor federation says.
SEIU, the Teamsters and JWJ make the point that not only does the 1964 law ban job discrimination based on sex, but that bosses “in male-dominated professions” often break the law against women “through assertions about women’s gender orientation and sexual identity.”
“The specific experiences of women” in those majority-male professions “demonstrate the impossibility of separating sex-based discrimination from discrimination based on sexual orientation or gender identity,” SEIU, the Teamsters and JWJ add.
The 1964 Civil Rights Act’s “plain text prohibits adverse employment action where the outcome would change with – because of – the employee’s sex,” the National Education Association and the American Federation of Teachers add in their brief. Adverse action “because of gender status or sexual orientation” meets that standard, they declare.
But the lawyers for the NEA, the AFT, the AFL-CIO, the SEIU, Jobs With Justice and the Teamsters won’t be in the courtroom telling the justices about their stands on Oct. 8. Trump Solicitor General Neal Francisco will – and Trump’s brief says employment discrimination against LGBTQ people is OK.
“’Sex’ does not mean ‘sexual orientation,’” Francisco’s brief to the court, before the discussion, says. “Discrimination because of sexual orientation does not involve treating members of one sex less favorably than similarly situated members of the other.” And “discrimination because of sexual orientation does not constitute improper discrimination based on sex stereotyping,” Trump and Francisco declare.
The Los Angeles Urban League blew the whistle on the second case, involving Section 1981 of the 1866 Civil Rights Act. The justices will tackle that issue on Nov. 13.
Until now, courts inserted one big caveat into Section 1981 cases: What’s called a “but for” clause, meaning that “but for” specific circumstances – namely that the person hurt was African-American – the discrimination would not have occurred.
The Ninth U.S. Circuit Court of Appeals in San Francisco took away even that caveat and ruled the 1866 law means what it says and that victims only need to show race was “a factor” – not the factor – to get their day in court after the other firms didn’t do business with them.
Trump wants to limit section 1981 again, and the Los Angeles Urban League, in a letter to Comcast’s CEO, says Trump wants to go even further and invalidate the whole section.
In a full-page ad in the Washington Post, L.A. Urban League President Michael Lawson told Comcast’s CEO the firm should not be trying to eviscerate Section 1981 as both the firm that discriminated against the black-owned film company.
The justices must “protect the rights of blacks and all Americans to do business without the vile presence of racism,” Lawson said. “Racism has no place in any contract negotiation. Once racism is present, it taints the entire negotiation and that taint cannot be cleansed by other supposed explanations.”
Comcast, with Trump’s support, is trying “to gut the Civil Rights Act of 1866, specifically section 1981, which prohibits discrimination on the basis of race, color, and ethnicity when making and enforcing contracts,” Lawson said.
Comcast turned down a contract with Entertainment Studios, owned by Byron Allen, “based, at least in part, on the fact that Entertainment Studios is owned by an African American,” Lawson said.
Allen is suing Comcast, citing section 1981’s ban on discrimination in contracts. Comcast says it turned down Allen for legitimate programming reasons, including its customers’ demand for more sports programming.
“Comcast and the Department of Justice have asked the Supreme Court to condone the inclusion of racism as a legitimate basis for refusing to enter into a contract with an African American so long as it is not the ‘only reason.’ We cannot condone Comcast’s attempt to eviscerate this important civil rights statute in order to legitimize their refusal to enter into a contract with Mr. Allen,” Lawson said.
If Comcast doesn’t reverse course, Lawson said, the L.A. Urban League may have no choice but to tell the rest of the country about it and urge a boycott of Comcast.
Trump’s Justice Department sided with Comcast, against Allen and his claim.
“The text of section 1981 guarantees all persons have the same right to certain outcomes, including the right to make contracts,” Trump’s Justice Department says. “Because ‘making’ a contract means entering into a contract, a person does not enjoy ‘the same right’ guaranteed by section 1981 if race prevents her from entering into a contract that a similarly situated white person would have entered. And the inverse is also true.”
The justices already have several other high-profile cases on their list. The top one is whether Trump acted legally in dumping DACA, the Obama-era Deferred Action for Childhood Arrivals program that lets the 800,000-plus “Dreamers” stay in the U.S. Lower courts have stopped Trump’s scheme to deport them all back to their home countries, mainly Mexico.
But Trump has taken the controversy all the way to the High Court, which will take the case on Nov. 12. The justices will also discuss the legality of Puerto Rico’s financial control board on Oct. 15.
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