Monday, April 22, 2019
The Supreme Court has just granted cert. in three cases to determine whether Title VII prohibits discrimination based on sexual orientation and gender identity. We've covered this issue for years, as the answer has gone from largely a uniform "no"; to the EEOC and DOJ saying "yes," while the circuits courts said "no"; to the current situation where some courts say "yes," others say "no," the EEOC says "yes," and the DOJ says "no." You get the idea--maybe the perfect storm of the classic split that attracts Supreme Court attention.
To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement. I can probably best summarize my prediction by saying that I'd have more hope if Justice Scalia was still on the Court, as he would occasionally argue for strong deferral to the EEOC, even when he likely disagreed personally with the result (showing his past as an administrative law professor). The issue is really interesting from a legal perspective. It involve 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. The oral arguments in these cases will definitely have some fireworks, and the sure-to-be split decision will likely be quite heated. So hold on tight . . . .