On this last episode, we look back on 23 years of joyous, difficult and always informative conversation.
The Supreme Court ruled in a 6-3 decision that LGBTQ employees are protected by the 1964 Civil Rights Act against workplace discrimination. This ruling came in the middle of Pride month and just days before the five-year anniversary of the Supreme Court’s 2015 decision that legalized same-sex marriage.
Before this month’s decision, there were no laws protecting LGBTQ employees from discrimination in 28 states — even though a fifth of LGBTQ Americans, and an even larger proportion of LGBTQ people of color — say they have experienced discrimination while applying for job.
How are local workers and businesses affected by this decision? And what steps are next in the fight for equality?
Produced by Richard Cunningham
KOJO NNAMDIYou're tuned in to The Kojo Nnamdi Show on WAMU 88.5, welcome. Later in the broadcast we'll talk about another high court ruling, one that preserves DACA at least for the time being. But first, it's the last day of Pride month. Earlier in the month LGBTQ people across the country celebrated after the Supreme Court ruled that employers couldn't discriminate against them based on sexual orientation or gender identity. This ruling came just days before the five year anniversary of the historic Supreme Court ruling for marriage equality.
KOJO NNAMDIThe ruling was a welcome surprise for the LGBTQ community, which has documented employment discrimination in nearly every industry. One-fifth of LGBTQ employees report facing some kind of discrimination while applying for jobs with people of color suffering more than their white counterparts. Today we look at what it took the LGBTQ community to win this victory and its next steps in the fight for equality.
KOJO NNAMDIWe'd love to have you join the conversation. Give us a call at 800-433-8850. Do you identify as LGBTQ? Have you faced discrimination in the work place? 800-433-8850. You can send us a tweet @kojoshow, email to email@example.com or you can go to our website kojoshow.org, join the conversation the there. Joining me now is Tom Spiggle, Owner of The Spiggle Law Firm. Tom Spiggle, thank you for joining us.
TOM SPIGGLEWell, thanks for having me, Kojo.
NNAMDICan you provide some background on this Supreme Court case? Who were the plaintiffs and how did it get to the highest court in the land?
SPIGGLEYeah. So, you know, prior to -- there were three plaintiffs here. The main plaintiff Bostic was from Georgia in the 11 circuit. And the court was addressing a split in the circuits about whether Title 7 of the Civil Rights Act of 1964, which is the main antidiscrimination -- federal antidiscrimination law in the nation whether it covered the rights of LGBTQ employees, because Title 7 provides that people cannot be discriminated against on the basis of sex. And so that's really what teed up the issue for the court is that the statute didn't directly address this issue.
SPIGGLEAnd there were circuit courts that were -- that had come down different sides of this issue. And there were three named plaintiffs in this one. Two of them where circuit courts that had found the Title 7 did provide these rights. And one, the 11th circuit, where Bostic was in Georgia finding that Title 7 did not cover those rights.
NNAMDIWell, just as Neil Gorsuch wrote for the majority in this 6-3 decision, were you surprised that he authored it and that he was joined by Chief Justice John Roberts?
SPIGGLEYes. I was very surprised. I think many many people on the legal community on both sides of this issue were surprised by this opinion and, of course, a number of other ones. Yeah, I think everybody -- the advocates going into it knew that they were, you know -- they had their arguments aimed at Gorsuch particularly, because of he's what's called a textualist. So he looks through the letter of the law in deciding these issues. And there was a strong textualist argument that because of "sex" means what it says. And that is if you were going to take action against somebody in the workplace, because of their sexual identity that's included.
SPIGGLEAnd they won the day, but that was far from certain going in. And I think many people including me if you'd asked me before the opinion came down I would have -- although I certainly support the argument that Title 7 does cover members of the LGBTQ community, I would have said that it was -- we were probably going to lose it.
NNAMDIJoining us now is Kierra Johnson, Deputy Executive Director of The National LGBTQ Task Force. Kierra Johnson, thank you for joining us.
KIERRA JOHNSONThank you. It's really great to be on the show with you.
NNAMDIWhat does this decision mean for the LGBTQ community? What will it's impact be?
JOHNSONYes. You know, this ruling means that it is illegal now to discriminate against LGBTQ people in the workplace. And that is going to have huge impact for people in, you know, who have all kinds of employers across the nation. But I think even more importantly is that it sets up a foundation for the work that we have to do moving forward. There are still gaps that we have to fill. There's still discrimination that happens and that can happen. And we've got work to do and this sets us up for further wins as we move forward.
NNAMDIWell, the Supreme Court's decision comes at a time of racial reckoning in this country. Is it significant that this decision was handed down even as the Black Lives Matter movement is sweeping the nation?
JOHNSONI think, you know, when we look at all of the SCOTUS decisions, right? We saw the upholding of DACA. We saw abortion access, a win in that arena as well. And I think the movement for Black Lives and the social justice activists working together cross movements is showing that, you know, we're gaining momentum, right? These movements are growing. And I think all of this is a context that -- I don't know if you're a glass half full kind of person -- signifies that we are moving in the right direction. And we've got more wins coming.
NNAMDIWe'd love to hear from you. What is your view of the Supreme Court ruling? Give us a call at 800-433-8850. Send us a tweet @kojoshow or email to firstname.lastname@example.org. Tom Spiggle, your firm represents employees who have faced workplace discrimination. What have you seen in this region? Is workplace discrimination against LGBTQ people a major issue in this region?
SPIGGLESadly, yes. I think all kinds of discrimination continue to happen certainly against the LGBTQ community. You know, we, of course, have many progressive employers in our region who are on the forefront of antidiscrimination policy, and they should be applauded. But there is no question that it still happens in the workplace. And even in employers who as a corporate body, you know, want to do the right thing. You can have a rogue manager. You can have somebody, you know, who's making these decisions who does act on a discriminatory bias.
SPIGGLEAnd, you know, prior to this Supreme Court ruling depending on what state you were in you had really limited rights. If you were in one of these states, you know, that they found that Title 7 did not cover discrimination against the LGBTQ community. And if you look in our region, you know, it used to be. Virginia has gotten new laws getting ready to come on the books, in fact, tomorrow that will provide broad protections.
SPIGGLEBut prior to that, you had strange situations where somebody in Virginia had very different rights for the same conduct, and if you cross the bridge into D.C. where you had much more expansive state rights for the LGBTQ community. So this really does even that out. I can't really over emphasize how momentous this decision is because, yes, absolutely discrimination still -- sadly still happens in the workplace and, you know, in other places in this LGBTQ community.
NNAMDIGiven this ruling, will standards for employment of LGBTQ individuals be the same in Virginia as they are in the District?
SPIGGLEYes, but the only reason I even hesitate a little bit is that, you know, that Title 7 still applies to employers with 15 or more employees. So it will remain the fact -- you know, the case that smaller employers are not covered by Title 7. And in states where there's not a strong state level antidiscrimination law you may have situations where, you know, they are not protected. That's not true in the DMV. You know, the D.C. Human Rights Act covers all employees. The Virginia Values Act what goes into effect will in some instances cover smaller employers. So in this area, you know, things are certainly -- it's a brighter day for the LGBTQ community at least in terms of workplace rights.
NNAMDIKierra Johnson, even though this ruling helps LGBTQ people in the workplace it does not apply beyond it. But something called the Equality Act would. What is that and what would it do?
JOHNSONYes. A lot of folks don't realize that this ruling is not a wide and expansive non-discrimination protection for LGBTQ people. It is still legal to discriminate against LGBTQ people in federally funded programs including hospitals and college and adoption agencies, you know, public accommodations such as hotels and restaurants. And the Equality Act is an attempt to get to those broad sweeping non-discrimination -- to create a broad sweeping non-discrimination policy so that we can end discrimination for LGBTQ people in every aspect of their lives, and that is what we're fighting for.
NNAMDITom Spiggle, are there any exceptions to the Supreme Court ruling? Any loopholes that states that are trying to get around it might be able to use?
SPIGGLEYou know, I think there are some. You know, there's the Religious Freedom Restoration Act, which says that -- well, it looks like only for closely held corporations probably not for public companies that for sincerely held religious beliefs they can in certain instances get around some workplace laws. That's a fairly limited exception. And in fact in the Bostic case -- I mean, in one of the cases before the Supreme Court that issue was argued before in the lower court and they lost. I think it's a fairly limited exception, but we will see I think some employers try that. I don't think -- I don't know that we'll see states try it. But who knows? We'll see.
SPIGGLEThere's also the ministerial exception under Title 7 that applies to religious organizations. So we're going to see some litigation in the margins around those issues. But this is a pretty strong opinion that I think is going to be hard for states and employers that for whatever reason, you know, don't want to comply with it or disagree with the policy of it.
SPIGGLEIt's going to be hard for them to get out from under it.
NNAMDISo are you saying that employers accused of firing or mistreating LGBTQ employees, those who claim that they're simply exercising their religious freedom, how will such employers fair under this ruling?
SPIGGLEI think it's going to be tough, you know. I mean, obviously it is an avenue that is available. You know, we saw the Hobby Lobby opinion where the court upheld the right of a private company that opposed using, you know, funds for abortion services. You know, so we could see an employer arguing that they have a First Amendment Right to express a sincere religiously held belief not to comply with these policies, but, you know, it's pretty limited. And the employer is going to have to show first that as a corporate policy they have this sincerely held religious belief, which again the Supreme Court didn't rule out the possibility. But it's very unlikely that a public company is going to be able to do that.
SPIGGLESo they're going to have to show that they have that belief as a corporate entity, and that whatever it is that they are opposing that they're actions are narrowly tailored to express this First Amendment, the religiously held belief. So I think it's going to be hard to argue that, you know, that they can just on a blanket basis, you know, fire people, because they are a member of the LGBTQ community.
SPIGGLEIn contravention of this statute.
NNAMDIWe're going to take a short break. When we come back we'll return to this conversation with Tom Spiggle and Kierra Johnson about what's next for the LGBTQ community. But you can still call us 800-433-8850 with your questions or comments. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're discussing after a big win in court what's next for the local LGBTQ community and in particular for LGBTQ employees. Taking your questions at 800-433-8850. Do you identify as LGBTQ? Have you faced discrimination in the workplace? We'd love to hear from you. Give us a call at 800-433-8850. What is your view of this Supreme Court ruling? 800-433-8850. We're talking with Tom Spiggle, Owner of The Spiggle Law Firm. And Kierra Johnson, Deputy Executive Director of The National LGBTQ Task Force.
NNAMDIKierra Johnson, earlier this month the Trump administration reversed protections preventing healthcare providers from discriminating against transgender people. Can you tell us about this change and whether it will be challenged?
JOHNSONThis is I think speaks to exactly what you and Tom were saying earlier. We've got a lot more work to do. The reality is is that transgender folks, you know, actively are getting discriminated against, you know, as it relates to healthcare. And it's going to take more than a Supreme Court ruling, right, and more than elections. We're going to have keep putting pressure on our congressional members and, you know, decision makers and institutions and holding them accountable. You know, the fight is not over. We're definitely going to be doing the work with faith leaders, with members of Congress, working with advocates across the country to shift that and reverse that. In addition to making sure, you know, things like discrimination and housing and voting discrimination are a thing of the past.
NNAMDIWhat's next in the fight for LGBTQ civil rights? First you, Tom Spiggle.
SPIGGLEWell, I think to Kierra's point, I mean, this is just the beginning. We've got the Supreme Court case clearly, but it's going to have to be -- there's going be litigation. There's going to have to be decisions by lower courts. Appellate Court is going to have to consider the application of this law. And, of course, Title 7 doesn't solve the entire problem. So we're going to continue to see litigation around this area and policy fights over it. So while this is a big step forward it doesn't get us all the way across the finish line.
NNAMDISame question to you, Kierra Johnson.
JOHNSONYeah. One of the big things we're focused on right now is making sure that LGBTQ people are filling out the census. It's not necessarily the sexiest thing to talk about with people. But when you, you know, educate people about how much money, we're talking trillions of dollars that are decided by census numbers, it becomes really interesting and important and inspiring for people to get that filled out so that we can ensure, you know, things. That money flows into our community for healthcare, COVID relief, Medicaid and the like. I think the other piece for us that's super top of mind is around housing discrimination. The homeless youth in the United States right now are overwhelmingly identified as LGBTQ. So we've got a huge stake in making sure that discrimination in housing is ended soon.
NNAMDIHere is Ken in Alexandria, Virginia. Ken, you're on the air. Go ahead, please.
KENHi. Thanks for taking my call. I teach locally. And I identify as a gay man. And at a previous school where I worked one of the assistant principals told me that I'm not to advertise the gay-straight alliance club that I sponsored. And this person told me this in kind of like a secluded corner of the workplace where there were no cameras. And it just felt very threatening and ominous, and that happened in the last like five years.
NNAMDIWas this a person in authority?
KENYes. It was an assistant principal, and the person in question also was a faith leader in their own community. So they had like two roles. They were not only our assistant principal, but outside of school they were a faith leader. And I think that that was influencing their decisions.
NNAMDIWell, the implied threat was that if you if you were to promote the organization that you are involved with that you would be terminated?
KENThey didn't go that far, but they told me -- because what had happened was a staff member walked by and I was in the hall with my students near my classroom and they asked me what does LGBTQ stand for, because I had a poster next to my door saying, "This is where the LGBTQ, you know, gay-straight alliance meets." And I explained it to the student. Well, the staff member that walked by reported it to the administration making it seem like I was, you know, recruiting people to be LGBTQ.
NNAMDITom Spiggle, I was about to ask you if you had any cases that you don't need to litigate anymore thanks to this ruling. This sounds like it would be one of them, because given this ruling that remark by the assistant principal was both inappropriate but maybe illegal.
SPIGGLEAbsolutely. And I'm sorry that happened to you. If it's a public school there's no question that under this new ruling that that would be illegal. If it's a private religious institution then we get into some of these other exceptions. But one important thing I think for everyone to know is that, you know, any claim brought up under Title 7 you have to file, depending on the state, within 180 days or 300 days after the discriminatory event or you lose your right to bring it forever. So, you know, that this happened five years ago would mean that you're probably -- I'm not suggesting to do that, but you would be out of luck for filing.
SPIGGLEYou have to file it with the EEOC, which is easy to do. You can go to eeoc.gov and do it yourself. Of course, you can do it with an attorney if you need to, but absolutely that would be illegal under this new ruling.
NNAMDIThank you very much. Care to comment on that, Kierra Johnson?
JOHNSONI just -- it's just an everyday example of what we're up against, right? Like the reality is, you know, people will remember Brown vs. Board of Education, right? That ruling happened. It didn't mean there was integration of schools immediately or that black students were treated with equity and fairness immediately. Right, we're still dealing with what that looks like in our schools today. And this is just another example of the work that we have to do. And I just want to appreciate, right, the work that of being a public ally to LGBTQ young people. It is not an understatement to say that it saves lives.
NNAMDIDoes this ruling, Kierra, have any special implications for people who identify as transgender?
JOHNSONYes. Overwhelmingly transgender people are amongst the most impacted by employment discrimination. And so absolutely this is a real celebration among, you know, transgender people everywhere. And it still doesn't mean that there isn't discrimination before people like get in their jobs. So we still have to work on, you know, getting their foot in the door. That's another piece of this puzzle that we've got to fix.
NNAMDILet me see if Susan in Columbia, Maryland is ready. Susan, you're on the air. Go ahead, please.
SUSANHi, Kojo. I just wanted to say that I was so both troubled, but also enthusiastic about the teacher that just called a little while ago, because I have a gender not conforming seven year old. And we're in Howard County schools, very progressive, but we've had all kinds of problems. We had a teacher say, oh, well, maybe he can save the dress up for the weekends. And I'm like, yeah, that's not really how this works. And they were well-meaning but they just didn't get it.
SUSANAnd, you know, the school district has been very proactive. But the local schools don't always have the resource base to get it. And having an ally like that man in the school would be incredible. So the fact that he was deterred from being proactive and make it that safe for all kids is abhorrent and I'm just really glad that, you know, this will have an effect to make it safer for everybody.
NNAMDISusan, thank you very much for sharing that story with us. Finally, Kierra Johnson, do you expect any backlash in state legislatures over the Supreme Court decision? Will it push them to limit LGBTQ rights in other areas, say rights of transgender athletes to participate in sports?
JOHNSONI definitely think, you know, when we get a win on one side it galvanizes the other side. And so, you know, Tom was mentioning the Religious Freedom Restoration Act in working with people of faith. I think that is a big part of our work to do. There is no civil rights battle that has not had faith leaders engaged ...
NNAMDIOnly have about 20 seconds left.
JOHNSON... and getting them engaged and ready for the fight is essential.
NNAMDIKierra Johnson Deputy Executive Director of The National LGBTQ Task Force. Tom Spiggle is the Owner of The Spiggle Law Firm. We're going to take a short break. When we come back we'll talk about another high court ruling, the one that preserves DACA at least for the time being. I'm Kojo Nnamdi.
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