The U.S. Supreme Court ruled only this June that the federal civil rights protections against workplace discrimination that Congress passed in 1964 also apply to LGBTQ employees.
But with the Senate’s confirmation of President Trump’s hurried nomination of Judge Amy Coney Barrett, to fill the vacancy left by Justice Ruth Bader Ginsburg after her death last month, civil rights attorneys are concerned the court will have opportunities to limit the scope of those hard-won rights.
What this could mean for the fashion industry is still unclear, though a number of fashion companies have professed their support for federal workplace protections for LGBTQ employees. In an amicus brief to the Supreme Court last year, some 200 businesses including Gucci, Nike, Under Armour and several others had told the court they believed that employment protections under Title VII of the Civil Rights Act of 1964, which bars employment discrimination on the basis of traits including national origin, race and sex, applies to all workers.
“When workplaces are free from discrimination against LGBT employees, everyone can do their best work, with substantial benefits for both employers and employees,” the companies wrote at the time in the amicus filing, in which parties who aren’t involved in a particular case can weigh in nonetheless and advise the court of their position.
Monique Lhuillier RTW Spring 2021
For many fashion companies, the question is also one of their ability to draw and retain the best talent, attorneys said.
“I think that employers in the fashion industry have an interest in protecting LGBTQ people and their rights,” said Charlie Arrowood, a nonbinary attorney who advises transgender clients on employment, name changes, and health-care issues.
“And particularly in places like New York, you’re going to get the best employees if you’re showing that — [and] this is especially something that young people who are looking for work right now are looking at, is, ‘Is your non-discrimination policy inclusive? Does your health insurance cover transition-related health care?’” Arrowood said. “Sometimes, if it’s required by law, that makes it an easy decision for you.”
For companies, their interest is also a matter of consistency. In the U.S., the scope of civil rights protections, as well as health care coverage, social security and access to other administrative benefits can vary based on state or local jurisdiction. The Supreme Court’s ruling in these cases mean that employees in offices across the country would be subject to certain of the same protections, attorneys said.
Until the Supreme Court’s June ruling in the three cases that considered the scope of employment discrimination protections for LGBTQ employees, known as the Bostock cases, fewer than half the states had such protections on the books.
Some 22 states and Washington, D.C., had prohibited discrimination based on sexual orientation and gender identity, while some offered more limited versions of those protections, according to the Human Rights Campaign, an LGBTQ civil rights advocacy group.
“Having the Supreme Court say once and for all that it is covered meant that now there’s a single standard and it’s the case for everyone that gender identity, gender expression and sexual orientation are covered under the ‘sex’ category in Title VII,” Arrowood said.
One of the main concerns of LGBTQ advocates is efforts in some states to limit the scope of protections for sexual orientation and gender identity discrimination on the basis of religious rights for employers. Companies have often invoked religious rights to argue against having to provide certain civil rights protections or health care protections, such not covering contraceptive health care, as in the Hobby Lobby case before the Supreme Court in 2014, or not wanting to provide certain services to LGBTQ customers, as in the case of Masterpiece Cakeshop in Colorado.
In the Masterpiece Cakeshop case, in which a bakery that had declined to serve a same-sex couple with a wedding cake, the Supreme Court in 2018 issued a narrow ruling for the baker in that particular instance. But the court left larger questions unanswered about whether companies can invoke their religious beliefs to circumvent civil rights and anti-discrimination protections for LGBTQ people.
While there aren’t yet employment cases on the Supreme Court’s upcoming docket to test employers’ religious rights protections, a somewhat unrelated case now before the court that involves adoption agencies in Philadelphia can set the tone and establish case law, experts said.
The case, Fulton v. City of Philadelphia, which is set for oral arguments before the court in November, asks the court to consider whether certain foster care agencies hired by the city could invoke religious objections to override the city’s non-discrimination protections for same-sex foster parents.
How the Supreme Court rules on the agencies’ religious objections will affect whether companies can later also attempt to use religious objections to similarly override Title VII’s employment protections for LGBTQ employees, legal experts said.
“A lot of people are in this place where they don’t know how the court is going to go on LGBTQ rights,” said Christy Mallory, legal director at the Williams Institute at the UCLA School of Law, which studies sexual orientation and gender identity law and public policy.
“So [the Fulton] case isn’t directly related to employment, but it could set a precedent that will have an impact on employment cases down the line,” she said.
Companies can nevertheless still set their own non-discrimination policies, as they had for LGBTQ employees even before the Bostock ruling in June. It’s unclear that any rollback of rights on religious grounds will affect fashion companies’ own internal policies, Mallory said.
“Even if the decision is rolled back, companies can decide on how they treat their employees,” said Mallory. “I don’t foresee a huge roll back of that decision, again, I think if anything I think it’s going to be possibly in the context of what religious employers can do, and I’d imagine there’s not a lot of overlap with the fashion industry there.”
Employer policies are one thing, but LGBTQ employees’ ability to seek recourse for workplace discrimination is another. For instance, while employers’ workplace non-discrimination policies may set the tone for how employees are treated and help to welcome them into the workplace, they don’t necessarily offer a formal path for recourse for instances of LGBTQ discrimination at work despite those policies.
“We’ve seen private corporations adopting non-discrimination policies for employees, often moving ahead of the public sector to give those protections,” Mallory said. “Granted, those are employer-level policies, they don’t have much bite,” she said. “If someone gets discriminated against, they can’t really file a lawsuit over an employer-level policy, they need a state or federal law.”
Employees seeking recourse for workplace discrimination, which typically falls under Title VII of the civil rights act, usually also have to first file a complaint with the Equal Employment Opportunity Commission (the federal agency that enforces Title VII laws) or a related state counterpart. The process is meant to fulfill Title VII’s requirement for plaintiffs to exhaust administrative remedies first before bringing lawsuits, and require employees to file their charges within fairly tight deadlines for doing so, employment attorneys said.
Without federal laws supporting the filing of such charges, the bureaucratic hurdles to seeking recourse for discrimination may be harder for employees to navigate, they said.
As Iris Halpern, a civil rights attorney at Rathod Mohamedbhai LLC, who was previously a senior trial attorney and an acting supervisory attorney at the EEOC, put it, “It’s kind of a quirky system, that most other types of claims don’t have to go through this kind of administrative exhaustion.”
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