Essay 4- civil rights PDF

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Essay #4: Current Civil Rights Battles Skyler Lowman The issue of discrimination has been a long debate in our country seemingly gathering more groups into that category. More recently, the issue of employment discrimination has been expanded to the LGBT community and has affected different people in different ways, which is seen through three undecided cases. The first case is Altitude Express v Zarda. This involves a gay man that worked as a sky-diving instructor who accused of inappropriately touching a client while tandem skydiving. The client claimed that he disclosed his sexual orientation to excuse his behavior. This resulted in him getting fired; Zarda claimed that he was fired based on his sexual orientation. In district court and US Appeals Court, the courts took Altitude Express’s side and said it was not discrimination because it is not included in the language of Title VII in the Civil Rights Act of 1964 (“Altitude Express v. Zarda”). In Bostock v Clayton County, a gay man worked as a child welfare coordinator for many years and was a good worker. He participated a gay softball league and quickly after began to receive criticism of his sexual orientation and later fired. However, when taken to court, the court dismissed his lawsuit for procedural deficiencies (“Bostock v. Clayton County”). The last case is R.G. & G.R. Harris Funeral Homes Inc., v Equal Employment Opportunity Commission. In this case, Stephens worked as a funeral director and presented as a man. However, after informing the owner of her intent to transition from male to female, she was fired. Both the district and US Appeals Court agreed that her termination was unlawful sex discrimination that violated Title VII of the Civil Rights Act of 1964 (“R.G. & G.R. Harris Funeral Homes Inc., v Equal Employment Opportunity Commission”). Overall, all of these cases address the issue of employment discrimination to members of the LGBT community. The question of LGBT rights has been debated extensively over the past 40 years or so. The basic consensus is that gay people can legally get married and should not be subject to discrimination. Overall, we have been making steady progress to a tolerant and nondiscriminatory environment for members of the LGBT community. Public opinion, especially in recent years has been increasingly supportive of LGBT protections. While Republicans show less support than Democrats for the advancement of LGBT rights and protections, both are relatively high. One article discusses this topic in light of today’s political nature by discussing the rarity of bipartisanship during today’s increasingly polarized climate. Therefore, it is remarkable “to be able to say there’s a majority support in all 50 states for that policy [LGBT protections against discrimination]” (Fitzsimons). Not only is this supported by a majority of our nation across states, but also by a majority of religions. NBC conducted a survey in 2019 resulting in the data that all major religions support nondiscrimination protections for members of the LBGT community “from 90% of Unitarian/ Universalists to 53% of Jehovah’s Witnesses” (Fitzsimons). Overall, the support for nondiscrimination protections toward this population has been increasing and is now across the board supported by our nation. I think that the Supreme Court should rule in favor of the plaintiffs in these cases who claim that they were unlawfully terminated from their jobs due to their sexual orientation or gender identity. This issue of discrimination has seen a long history in our nation. In my opinion, we know the effects of discrimination and the terrible things they can cause; nothing good has come out of discrimination and it is very blatantly known to be horrible. With that being said, I think that if any case regarding blatant discrimination, such as these, came to the Supreme Court,

it would be alarming to the public for them to rule in favor of the alleged act of discrimination. We live in a very progressive society ideologically and I think the Supreme Court knows that if they were to favor the discriminatory companies in these situations, the backlash from the public would be extreme. That reason alone is enough for the court to favor the plaintiffs in these cases. We are working towards a more tolerant and accepting society and have been successful at doing so for many years, therefore I think we should and will continue to do so. Overall, my position of these cases is that the Supreme Court should, and I believe will, favor the plaintiffs in order to continue our path to tolerance. The case has controversy, standing, and mootness. The real question at this time is not whether or not the case will be heard, but when one of these cases will be heard. Other factors that influence the likelihood of a case being heard is the scope of the question, the justice’s own interest, and the public. Over the past few years there has been an extremely fast and growing tolerance for gay civil rights. A substantial majority of people are in favor of ending discrimination against gays and lesbians. With this being said, I could see the Supreme Court hearing one of these cases in the near future as it is a very ripe and supported topic at the moment. In addition, there has been some controversy between different lower courts between these cases. For example, In Altitude Express v. Zarda, the district and the US Appeals Court voted in favor of Altitude claiming that Title VII of the Civil Rights Act doesn’t protect against discrimination based on sexual orientation. This is contrary to the Bostock v Clayton County case which was actually dismissed by the district and Appeals court for procedural deficiencies. The R.G. & G.R. Harris Funeral Homes Inc v Equal Employment Opportunity Commission was the only case out of the 3 that ruled that this termination was a violation of Title VII of the Civil Rights Act of 1964. This inconsistency across these cases is another incentive for the Supreme Court to hear this case even sooner. Lastly, the justice’s own interest in the case. As of right now, the Roberts Court leans more conservative with 5 judges that identify and rule conservatively and 4 that identify and rule liberally. However, regardless of this fact, I think that the courts would potentially hear a case on this topic soon because we do live in a very progressive era and have some justices that tend to stay more moderate including Chief Justice Roberts. Overall, I think the Supreme Court will hear one of these cases fairly soon due to the fact that it is a progressive topic discussing modern day discrimination, which is something society as a whole seems to be very passionate about. I think that the first step in resolving the issue of whether the Civil Rights Act protects LGBT people from job discrimination would be to classify members of the LGBT community as a protected class. In the past, the courts have addressed these issues as if it were applicable for the reasonable- basis test. For example, in the United States v Windsor case in 2013, “the Court did not declare lesbians and gays a protected class like racial minorities, requiring strict scrutiny nor did it declare them to be a semi-protected class, like women, requiring “intermediate scrutiny” (Greenberg & Page). However, in order for the Supreme Court to accurately address this case, they first need to classify LGBT people as a protected class. By doing so, this would automatically move any laws dealing with LGBT rights or issues to the strict scrutiny test. People’s sexual orientation has also led to discriminatory laws that have violated their right to privacy through restrictions placed on sexual activity, marriage, employment, etc. Therefore, this population/ minority has gone through arguably enough discrimination in the past few years to be classified as a protected class, in my opinion. In addition, the violation of the fundamental right to privacy has arguably been violated in these cases therefore further placing these cases in this category eligible for strict scrutiny test. After being placed in this category, the law is

presumptively unconstitutional until proven otherwise with compelling government interest. All of the plaintiffs used Title VII under the Civil Rights Act of 1964 to support their case of discrimination based on sex. This states that “Title VII prohibits employment discrimination based on race, color, religion, sex and national origin” (“Title VII of the Civil Rights Act of 1964”). In defense, one of the companies argued that this clause only stated “sex”, not sexual orientation. I think that in order to resolve this conflict, the Supreme Court will have to either reinterpret sex or add onto this clause. In 1964 when this clause was created, the idea of LGBT was not a prominent topic and transgender was definitely not being discussed. With that being said, the definition of “basis of sex” can simply be amended in order to include sexual orientation. The one consideration that is up for debate is the involvement of freedom of religion in specific cases. None of these cases discussed contain issues of an employer not hiring or firing someone due to their sexual orientation with regard to the employer’s religion. If an employer stated that it was against their religion to endorse a member of the LGBT community with employment, then that is another story. In those cases, I would think that the Supreme Court would refer back to the Burwell v Hobby Lobby case from 2014 and allow that decision to be up to the employer as long as there is not offensive discrimination going on in the process on either end. As we saw in the Masterpiece Cakeshop v Colorado Civil Rights Commission case in 2018, a violation of religious freedom on the defendant’s side could lead to a turnover in the case. Meaning that the plaintiff cannot be hateful or hostile towards the religion of the employer in response as that would be considered a violation of the employers right to their free exercise of religion. However, in these cases specifically, I don’t think that the freedom of religion is being imposed on. When resolving the question of whether the Civil Rights Act protects LGBT people from job discrimination, the courts might have to evaluate the considerations of the establishment and free exercise clauses. This is a situation where the question of where does religious freedom end and discrimination begin, comes into play. That is more of a case by case basis however, and religious issues are not addressed in these cases by the defendants. Overall, this issue might further the tension between the establishment clause and the free exercise clause. I think that in the near future, the courts will add the LGBT population to the protected classes list in order to automatically identify their cases as discriminatory under strict scrutiny and I think that the courts will expand the definition of sex in Title VII to include this population. Overall, this will result in the further protection of rights of LGBT people from job discrimination. In conclusion, I think that the Supreme Court should and will favor the plaintiffs in these cases in order to further our nation's liberties and civil rights and continue to expand that to all populations of people. The LGBT community has made remarkable ground in the past few decades and will continue to do so. In the near future, I would assume that the Supreme Court will address this issue of discrimination in employment on the basis of sexual orientation and gender identity. This may lead to furthering the definition of the thin line between discrimination and religious freedom, but that will most likely be handled on a case to case basis. Overall, I think that our society and judicial system will continue to uphold values of tolerance and acceptance of all people and will push corporations and organizations to do the same.

Bibliography: “Altitude Express v. Zarda.” Oyez, https://www.oyez.org/cases/2019/17-1623. Accessed 26 Apr. 2020. “Bosotck v. Clayton County.” Oyez, https://www.oyez.org/cases/2019/17-1618. Accessed 26 Apr. 2020. Fitzsimons, Tim. “Majority of Americans Back LGBTQ Protections - but Support Is Sliding.” NBCNews.com, NBCUniversal News Group, 26 Mar. 2019, www.nbcnews.com/feature/nbc-out/majority-americans-back-lgbtq-protections-supportsliding-n987156. “R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.” Oyez, https://www.oyez.org/cases/2019/18-107. Accessed 26 Apr. 2020. “Title VII of the Civil Rights Act of 1964.” U.S. Equal Employment Opportunity Commission, www.eeoc.gov/laws/statutes/titlevii.cfm....