Podcast: LGBT Workers Win Blockbuster Supreme Court Ruling

The Supreme Court broke new ground with its 6-3 ruling that an employer that fires someone merely for being gay or transgender violates Title VII of the Civil Rights Act. The Court's decision is a major victory for LGBT employees, who had lacked basic job protections in more than half of the states.

Anthony Oncidi, head of the labor and employment group for Proskauer's Los Angeles office, joins XpertHR Legal Editor David Weisenfeld to discuss the ruling's significance, what it means for employers and what the next big workplace issue will be at the nation's highest court.

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Additional Resources

LGBT Workers Win Job Protections in Landmark Supreme Court Ruling

LGBTQ+ Protections Expanded Nationwide: Time For Employers To Act


David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by Reed Business Information and proudly partnered with LexisNexis.

The Supreme Court has handed LGBT workers a major victory, ruling employers that fire someone merely for being gay or transgender violate Title VII of the Civil Rights Act. It's the Court's biggest employment law decision in several years and caught some observers by surprise.

On this podcast we'll discuss what the Court had to say in its 6-3 ruling in Bostock v. Clayton County. The ruling is significant because while the Court had recognized same-sex marriage in 2015, it had yet to provide workplace protections for LGBT employees - at least until now.

Joining me to discuss this landmark decision, as he often does on big Supreme Court cases, is Anthony Oncici, head of the labor and employment group for Proskauer's Los Angeles office. Tony has co-presented several webinars with me on the Supreme Court and is often quoted by national media outlets. So we're glad to have him back.

Tony, we've spoken before about how Bill could marry Tom on a Sunday and get fired on a Monday for it in the 29 states without LGBT employment protections. But that's not the case anymore. So what jumped out to you the most in this blockbuster ruling? [0:01:39.8]

Anthony Oncidi: Well I think, David, that the way in which the opinion is being discussed today, we're seeing this in op-ed pieces all over the country, and one of the terms that struck me is something I actually had not heard previously but I think we're going to be hearing a lot more about, is the term 'progressive textualism.' And those two words probably wouldn't generally have been thought to go together prior to this opinion in Bostock.

As those who watch the Court know, textualism is an interpretive mechanism that was, if not invented by, certainly used and used frequently by the late Justice Antonin Scalia. And in most instances textualism was viewed, I think, by both the right and the left as a means by which to limit a broader interpretation of either a constitutional provision or a statutory provision, in effect a rear-guard action against the living constitution concept that those on the progressive left often say should apply to interpretation.

Here we have a situation where textualism is being used but a progressive result comes from that use of the mechanism, and it's something that I think nobody has easily or readily recognized as a possibility.

Let me also just say at the outset, David, that I, like most people I think, could not be happier about the result here. I don't think at this late date, especially after the gay marriage decision, anyone can believe that, as you said at the top, it should be legal to marry a same-sex partner on a Sunday and get fired for it and lose your livelihood for it on Monday. So I definitely am a great supporter of the outcome here, but what we're talking about are the means by which that outcome was achieved.

David Weisenfeld: Tony, these cases involved three long-time employees fired after revealing their sexual identity to their employers - two gay employees and then another involving a funeral home director transitioning from male to female - and I was inside the courtroom for the arguments last fall and it seemed like the outcome was very much in doubt at the time. I remember Justice Neil Gorsuch, who ended up authoring the majority opinion, expressing concerns about the potential consequences.

So with that said, were you surprised, Tony, by the ultimate result here? [0:04:10.6]

Anthony Oncidi: I very much was. I think most of America was surprised by this, and especially Justice Gorsuch's leading the majority and writing the opinion. Chief Justice Roberts has been on the right and the left in recent years, so I think he's probably viewed by people on the right as being not as reliable a conservative vote, but Justice Gorsuch, I think, was thought to be so.

And especially when you add to that Justice Gorsuch is quite literally Justice Scalia's replacement, putting Merrick Garland to one side, which is another issue. But Justice Gorsuch replaced Justice Scalia on the Court and was, I think, viewed to be quite an acolyte of his. So yes, I was quite surprised by the outcome.

David Weisenfeld: And interestingly, Chief Justice Roberts, who you just mentioned, was in the dissent in that same-sex marriage case but went the other way on this one. [0:05:05.2]

Anthony Oncidi: That's correct. Again something that seemingly would not have, at first blush, been predictable. But an important thing, another important factor to keep in mind with respect to this, this was not a constitutional decision. This was a simple statutory interpretation. And when I say "simple statutory interpretation" I mean the opinion along with the dissents are more than 100 pages long, but I think it's important to bear in mind that if Congress were to be of a mind to overrule this decision, it could.

If there were a majority in the House and a majority in the United States Senate to make the outcome different, that is would reinstate the possibility of discrimination on the basis of sexual orientation or trans status, Congress could do that and the President could sign such a bill.

Now I suspect that will never happen. I think it's probably interesting that Congress now kind of gets off the hook in having to decide this because the Court has interpreted a previous statute that was enacted in 1964 to encompass protections that I think everybody concedes was not anticipated when the statute was first enacted in 1964, either by Congress or by Lyndon Johnson who signed it.

David Weisenfeld: Yeah, let's get right to that because Justice Alito, in dissent, hammered home the very point that in 1964 ordinary Americans reading this law wouldn't have dreamed that discrimination because of sex in Title VII meant discrimination because of sexual orientation, much less gender identity. What did you make of the dissent and what Alito had to say? [0:06:49.7]

Anthony Oncidi: Well I think that Justice Gorsuch dealt with that quite cleverly, and what he said was that there is no need for the Court to look to original intent of a statute or to look at factors other than the actual text, emphasizing the textualist approach, when looking at a provision such as this. And so what he said is the first thing you do is figure out whether or not there's been a change in the meaning of the operative terms of the statute. And that is discrimination on the basis of sex.

And he comes to the conclusion, or the majority came to the conclusion, that both the word 'discriminate' and the word 'sex' mean the same thing today that they meant in 1964. And so as a result of that, even though the drafters may not have, and President Johnson may not have intended this result, it is something that is allowed by - indeed he contends is compelled by - the language that was used in the statute.

The phrase that I picked up from this which I thought was worth repeating, Justice Gorsuch said, "The limits of the drafters' imagination supply no reason to ignore the law's demands." So he concedes that nobody intended this result, but he comes to the conclusion that that doesn't matter, and then uses both Alito and Scalia's own words against the dissent by saying we're not supposed to look at legislative intent. We're only supposed to look at the words. That's what the textualists say we're supposed to do. And he said therefore context doesn't matter.

David Weisenfeld: It's fascinating. I remember from our many conversations over the years that Justice Scalia was a professor of yours many years ago, and I found it so interesting that both the majority and the dissent were quoting him to make their case. [0:08:51.5]

Anthony Oncidi: Yes, it is true. I very much enjoyed getting to know him at that time and having some discussions with him. I was honored to have some discussions with him in the years after. But I think no one knows how he would have come out in this particular case, since this clearly is really his wheelhouse, his invention, this textualism.

And I think he may have come to the conclusion that he won the battle but lost the war in terms of textualism because if now textualism is going to be used to modify, let's say, statutory provisions or constitutional provisions in ways that he may not have agreed with, I'm not sure he would have gone along.

David Weisenfeld: People often speculate, Tony, how much amicus briefs - and that's briefs filed by outside parties - really affect a case at the Supreme Court. But in this one over 200 businesses weighed in on the employee's behalf. Do you think that that played a role in swaying the Court at all? [0:09:56.7]

Anthony Oncidi: I doubt it. I think the Court is relatively immune to certainly the number of amicus briefs that come in on a case. We've talked about this before. I'll say what I've said, which is I think most of America - if not just about all of corporate America - has long since moved past this issue. I can't think of one major, minor or in between employer that is of the view - at least other than perhaps in an amicus brief on the other side in this case - that discrimination, invidious discrimination, should be permissible in the workplace no matter what the basis of it is.

So here we have a situation where clearly there was such discrimination. That was conceded by the employers that were at issue here. And they were testing the question of, "Even if you truly are discriminating only on the basis of sexual orientation or trans status, should that be legal or illegal?" That is the very clear question that is at issue here. The Court goes to some length in saying that there's no ambiguity as to what the question here is. Everyone understands what the question is, and it was squarely before the Court to decide.

David Weisenfeld: I remember when this was argued that there was some discussion that there could be a potential middle ground with the ruling, but the Court didn't opt to go that way. And I was just wondering how significant you see it that Justice Gorsuch, who we've been talking a lot about, President Trump's first appointee to the Supreme Court, the fact that he's the one who offered this opinion? [0:11:29.0]

Anthony Oncidi: Correct. I haven't heard much of what the White House has said in response. With this, as with other issues that are now percolating on the national stage as we are just a few months away from a presidential election, I think everyone is looking to see which side to be on in a case like this. And that's actually one of my disappointments, actually. I think that questions like this should be something that legislators have to answer for.

Like I said before, I certainly don't believe that there should be the forms of discrimination that were at issue here. I do believe they should be illegal. But I'd be curious to hear how a legislator would defend that. How would a legislator say that it should be permissible to terminate people based upon their sexual orientation or their trans status? I don't know what the logical or good-faith argument is for that. And now no politician will ever have to make that argument because the Court has done the heavy lifting for them by deciding the issue.

David Weisenfeld: Again we're speaking with Los Angeles employment attorney, Tony Oncidi, who heads the labor and employment practice group at Proskauer.

And Tony, the Trump administration recently finalized a rule that would remove non-discrimination protections for LGBTQ people when it comes to healthcare and health insurance. Any chance that this Supreme Court ruling will have an impact on that rule and others like it? [0:12:54.3]

Anthony Oncidi: I suspect not, because as I said, this is simply an interpretation of Title VII and there would have to be obviously a new challenge based upon, perhaps, the reasoning. And I'm not familiar enough with the text of the statutes or regulations at issue in those health-related mandates. But certainly they would be susceptible to interpretation similar to what occurred here if there's an anti-discrimination provision based on sex.

Where I see the real action coming in the near future - and even Justice Gorsuch left this open - is the coming collision between so-called genuinely held religious beliefs on the one hand and LGBTQ issues on the other. I think that is going to be a significant issue coming up. It's traced out in the dissents in this case, and it's also referenced in the majority opinion.

David Weisenfeld: So is that the whole issue that we've seen with the states trying to legislate with bathrooms and locker rooms? [0:13:55.8]

Anthony Oncidi: That's slightly different and that's also talked about, especially in the dissent by Justice Alito. I think that the religious beliefs motivation with respect to both state and federal statutes is going to result in, as I said, a collision between this opinion and the kinds of things that are percolating with respect to the religious beliefs provisions because there's a lot of room, given the federal statute and the state statutes, to assert religious beliefs as a basis.

Now obviously not all employers can do that, so I think it really is going to be a tiny fraction of the employers in the United States that are going to be asserting those kind of rights with respect to religious beliefs. But I do believe that that's going to still be a significant area for conflict in this area.

David Weisenfeld: And we've seen that argument succeed by religious-based employers with the Affordable Care Act. That's a great point you brought up, and it'd be interesting to see if that carries over to here. [0:15:01.0]

Anthony Oncidi: Correct. I do believe that's where it's going to go. But as I said, I think it's of limited applicability because most employers of course are not religiously based. Most employers are not religious institutions, nor are we dealing with members of their staff who are either representative of, or in some ways expected to embody, religious beliefs. That's a very unusual workplace setting. And so I think it's going to make for harder decisions, but it's not going to have much applicability to most employers in the United States.

David Weisenfeld: Well certainly this was a blockbuster ruling this week to be sure. I'd be remiss before we let you go, Tony, if I didn't ask if there are any other pending employment issues outside of this that employers should be on the lookout for in the next year or so from the Supreme Court? [0:15:50.1]

Anthony Oncidi: I still think that there's more work to be done on the arbitration question. I practice, as you know, in California, and this continues to be something that is roiling the courts in California and elsewhere, precisely what can and cannot be subjected to arbitration.

In California we have an exception for so-called 'private attorney general act cases,' where employees purportedly are acting as private attorneys general. And the California Supreme Court has ruled in a case called Iskanian that those kinds of cases, which are really just wage and hour cases, cannot be compelled to arbitration.

The Supreme Court has had several opportunities to rule on that, and it has ducked the issue several times, but I think ultimately will have to decide that. And I think given the very pro-arbitration stance that the majority of the Court has, I suspect that they will eventually make a decision in that area that will be favorable to employers.

David Weisenfeld: Okay. Los Angeles employment attorney, Tony Oncidi, has been our guest. As always, Tony, thanks so much for your time and insights on Supreme Court cases affecting HR. [0:17:11.1]

Anthony Oncidi: My pleasure, David. Always nice to talk to you.

David Weisenfeld: I'm David Weisenfeld. We hope you enjoyed this podcast. Continue checking our website regularly for more podcasts on topics affecting the workplace, including How Employers Should Respond to the George Floyd Aftermath.

The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by Reed Business Information, and is proudly partnered with LexisNexis.

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