The Trump administration has argued before the Supreme Court that Title VII does not apply to LGBT individuals. Meanwhile, the Equal Employment Opportunity Commission, which is also a part of the administration, maintains the opposite stance. Last term, the Supreme Court had the opportunity to hear a case on the issue but declined.
“There’s definitely a lot at stake here,” James Esseks, a civil rights attorney who served served as counsel in Obergefell v. Hodges, the landmark 2015 case affirming the right to same-sex marriage, told CNBC over the summer. “Are LGBT people protected from discrimination in a way that most other people in the country are, or are we not?”
While the court has never ruled on whether employers may discriminate on sexual orientation, in the 1989 case Price Waterhouse v. Hopkins the court held that it is impermissible to discriminate based on gender stereotypes.
Jason Habinsky, a partner in the Labor and Employment Practice Group in the New York office of Haynes and Boone, said that a ruling granting protection to LGBT employees would not affect many companies who already have policies in place shielding them from discrimination. For other companies, he said, it could be a wake-up call.
“This could serve as an alarm bell for certain employers who are not yet protecting those rights, and who fall in those pockets of the country where there are no laws and no protections,” Habinsky said.
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