Hot Topics in Business Law

Jul 27, 2020 |

Article 1: “Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules”

According to the article, the United States Supreme Court ruled recently that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a long-sought and unexpected victory.

“An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling.

That opinion and two dissents, spanning 168 pages, touched on a host of flash points in the culture wars involving the L.G.B.T. community — bathrooms, locker rooms, sports, pronouns and religious objections to same-sex marriage. The decision, the first major case on transgender rights, came amid widespread demonstrations, some protesting violence aimed at transgender people of color.

Until this decision, it was legal in more than half of the states to fire workers for being gay, bisexual or transgender. The vastly consequential decision thus extended workplace protections to millions of people across the nation, continuing a series of Supreme Court victories for gay rights even after President Trump transformed the court with his two appointments.

The decision achieved a decades-long goal of gay rights proponents, one they had initially considered much easier to achieve than a constitutional right to same-sex marriage. But even as the Supreme Court established that right in 2015, workplace discrimination remained lawful in most of the country. An employee who married a same-sex partner in the morning could be fired that afternoon for being gay.

The lopsided ruling, coming from a fundamentally conservative court, was a surprise. Justice Gorsuch, who was Mr. Trump’s first appointment to the court, was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Supporters of L.G.B.T. rights were elated by the ruling, which they said was long overdue.

“This is a simple and profound victory for L.G.B.T. civil rights,” said Suzanne B. Goldberg, a law professor at Columbia. “Many of us feared that the court was poised to gut sex discrimination protections and allow employers to discriminate based on sexual orientation and gender identity, yet it declined the federal government’s invitation to take that damaging path.”

In remarks to reporters, Mr. Trump said he accepted the ruling. “I’ve read the decision,” he said, “and some people were surprised, but they’ve ruled and we live with their decision.” He added that it was a “very powerful decision, actually.”

The Trump administration had urged the court to rule against gay and transgender workers, and it has barred most transgender people from serving in the military. The Department of Health and Human Services issued a regulation recently that undid protections for transgender patients against discrimination by doctors, hospitals and health insurance companies.

Those actions involved different laws from the one at issue in the subject case, and the Supreme Court has allowed the military ban to go into effect while lawsuits challenging it proceed. Still, the court’s ruling suggested that a new era in transgender rights has arrived.

The decision, covering two sets of cases, was the court’s first on lesbian, gay, bisexual and transgender rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. Proponents of those rights had worried that his departure would halt the progress of the movement toward equality.

The Supreme Court is generally not very far out of step with popular opinion, and large majorities of Americans oppose employment discrimination based on sexual orientation, and substantial ones oppose it when based on gender identity. More than 200 major corporations filed a brief supporting the gay and transgender employees in the cases before the court.

The decision was both symbolic and consequential, and it followed in the tradition of landmark rulings on discrimination. Unlike Brown v. Board of Education, the 1954 decision that said racially segregated public schools violated the Constitution; Loving v. Virginia, the 1967 decision that struck down bans on interracial marriage; and Obergefell v. Hodges, the 2015 decision that struck down state bans on same-sex marriage, the new decision did not involve constitutional rights.

Instead, the question for the justices was the meaning of a statute, Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. They had to decide whether that last prohibition — discrimination “because of sex” — applies to many millions of gay and transgender workers.

Justice Gorsuch wrote that it did.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote.

“It is impossible,” Justice Gorsuch wrote, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The decision will allow people who say they were discriminated against in the workplace based on their sexual orientation or gender identity to file lawsuits, just as people claiming race and sex discrimination may. The plaintiffs will have to offer evidence, of course, and employers may respond that they had reasons unrelated to discrimination for their decisions.

Justice Samuel A. Alito Jr., in a dissent joined by Justice Clarence Thomas, wrote that the majority had abandoned its judicial role.

“There is only one word for what the court has done today: legislation,” Justice Alito wrote. “The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

“A more brazen abuse of our authority to interpret statutes is hard to recall,” he wrote. “The court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”

The common understanding of sex discrimination in 1964, Justice Alito wrote, was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, he wrote, it could pass a new law.

“Discrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status” in 1964, he wrote. “Any such notion would have clashed in spectacular fashion with the societal norms of the day.”

Justice Alito added that the majority’s decision would have pernicious consequences.

He said the majority left open, for instance, questions about access to restrooms and locker rooms. “For women who have been victimized by sexual assault or abuse,” he wrote, “the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”

Nor did the majority address, he said, how its ruling would affect sports, college housing, religious employers, health care or free speech.

“After today’s decision,” Justice Alito wrote, “plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.”

“Although the court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” he wrote. “The entire federal judiciary will be mired for years in disputes about the reach of the court’s reasoning.”

Justice Gorsuch responded that the court’s ruling was narrow. “We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote. “Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”

He added that Title VII itself included protections for religious employers and that a separate federal law and the First Amendment also allow religious groups latitude in their employment decisions.

Justice Brett M. Kavanaugh, Mr. Trump’s other appointment to the court, issued a separate dissent making a point about statutory interpretation. “Courts must follow ordinary meaning, not literal meaning,” he wrote, adding that the ordinary meaning of “because of sex” does not cover discrimination based on sexual orientation or gender identity.

“Seneca Falls was not Stonewall,” he wrote. “The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623.

The first case was filed by Gerald Bostock, who was fired from a government program that helped neglected and abused children in Clayton County, Ga., just south of Atlanta, after he joined a gay softball league.

The second was brought by a skydiving instructor, Donald Zarda, who also said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”

The case on gender identity, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107, was brought by a transgender woman, Aimee Stephens, who was fired from a Michigan funeral home after she announced in 2013 that she was a transgender woman and would start working in women’s clothing.

Mr. Zarda died in an accident in 2014, and Ms. Stephens died on May 12. Their estates continued to pursue their cases after their deaths.

Critics sometimes say that the Congress does not hide elephants in mouse holes, Justice Gorsuch wrote, meaning that lawmakers do not take enormous steps with vague terms or in asides.

“We can’t deny that today’s holding — that employers are prohibited from firing employees on the basis of homosexuality or transgender status — is an elephant,” he wrote. “But where’s the mouse hole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them.”

“This elephant,” he wrote, “has never hidden in a mouse hole; it has been standing before us all along.”

 Discussion Questions 

  1. What was the reasoning behind the majority decision in this case?

According to the article, United States Supreme Court Justice Neil Gorsuch (who wrote the opinion for the majority) indicated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Civil Rights Act of 1964 prohibits discrimination based on sex.

  1. Discuss Justice Samuel Alito’s dissent in this case. What was the reasoning behind Justice Alito’s dissent?

According to Justice Alito, in reaching its decision that L.G.B.T. discrimination is sex discrimination, the majority is legislating from the bench, suggesting that it is actually making law rather than interpreting already-existing law.

  1. Do you agree or disagree with the majority decision in this case? Explain your response.

This is an opinion question, so student responses may vary.

Article 2: “University of California Votes to Restore Affirmative Action Nearly 24 Years After It Was Outlawed”

 According to the article, the University of California has voted to restore affirmative action in hopes of diversifying its student body.

The unanimous decision was reached by the school’s Board of Regents recently, nearly twenty-four years after it was outlawed by Proposition 209, which banned the consideration of race and gender in admissions in California.

By voting, the university endorsed its repeal.

The board also voted in favor of an amendment which would repeal Proposition 209 and provisions prohibiting the state from granting favorable treatment to anyone on the basis of race, sex, color, ethnicity or nationality.

“There is amazing momentum for righting the wrongs caused by centuries of systemic racism in our country. The UC Board of Regents’ votes to endorse ACA 5 and to repeal Proposition 209 plays a part in that effort,” board chair John A. Pérez said in a statement.

“As we continue to explore all the University’s opportunities for action, I am proud UC endorsed giving California voters the chance to erase a stain, support opportunity and equality, and repeal Proposition 209.”

In a news release, the board said Proposition 209 challenged the university’s efforts to create and maintain a student body that “reflects California’s laudable cultural, racial, geographic and socioeconomic diversity.”

The goal of affirmative action in US colleges and universities is to eliminate discrimination in the admissions process by recruiting and providing incentives for groups, like minority students and women, who have been historically excluded from leadership positions in American society.

Affirmative action refers to a set of policies and laws intended to combat that discrimination while promoting diversity in schools and workplaces. Supporters say it levels the playing field, promotes a healthy multicultural society and helps compensate for centuries of racial, social and economic oppression.

Detractors argue it’s a form of reverse discrimination that favors one group over another based on racial or gender preferences instead of academic achievement.

California is one of eight states that have banned race-conscious admissions practices.

“It makes little sense to exclude any consideration of race in admissions when the aim of the University’s holistic process is to fully understand and evaluate each applicant through multiple dimensions,” UC President Janet Napolitano said in a statement.

“Proposition 209 has forced California public institutions to try to address racial inequality without factoring in race, even where allowed by federal law. The diversity of our university and higher education institutions across California, should — and must — represent the rich diversity of our state.”

The state Assembly approved Assembly Constitutional Amendment 5 (ACA 5) on Wednesday 60-14. The legislation is now in the state Senate, where it must also pass with a two-thirds vote by June 25.

If ratified, ACA 5 will appear on November 3 general election ballot, where it would need a majority vote to pass.

In May, the University of California Board of Regents also unanimously voted to waive ACT and SAT tests as an admissions requirement until 2024 to align their admission policies with “the broad-based values of the university.”

Discussion Questions 

  1. What is affirmative action?

Affirmative action is a program that seeks to cure past practices of discrimination by preferring (in close cases when comparing the educational attainment, skill set, experience, etc. of applicants) individuals from categories of people who have been historically subject to discrimination.

  1. What is the argument in favor of affirmative action? What is the argument against it?

The argument in favor of affirmative action is that it fulfills the purposes of the Civil Rights Act of 1964 and other anti-discrimination laws by actively seeking to reduce or eliminate the effect of past practices of discrimination. The argument against it is that it constitutes reverse discrimination against individuals from categories of people who have not been historically subject to discrimination.

  1. Do you agree or disagree with the University of California’s decision to restore affirmative action in its university admissions? Explain your response.

This is an opinion question, so student responses may vary.

Article 3: “Taco Bell Says Employees Can Wear Black Lives Matter Masks After A Worker Was Fired for Wearing One”

According to the article, Taco Bell said recently that it does not prohibit its employees from wearing Black Lives Matter masks and was working closely with an Ohio franchise after a former employee said he was fired for wearing a mask supporting the movement.

Denzel Skinner shared a live video on Facebook June 8 about getting fired from a location in Youngstown, Ohio, for refusing to take off a Black Lives Matter mask. The video started going viral Thursday.

“We believe Black Lives Matter. We were disappointed to learn about the incident that took place in Youngstown, OH,” Taco Bell said in a statement. “We take this very seriously; we have been working closely with our franchisee that operates this location to address the issue.”

Skinner said he worked for the restaurant for eight years.

“This is crazy – all because I got a Black Lives Matter mask on – that I’m losing my job,” Skinner said in the video. “We can wear any type of masks.”

In the video, an unidentified woman, possibly a manager, told Skinner the masks had to be plain and “You can’t bring politics into the building.”

Skinner responded that it wasn’t politics.

“Bro, I’m not bringing politics in, this is what I’m standing for,” Skinner said. “Like how is this considered politics?”

The fast-food chain said in its statement that the company’s chief people office and parent company Yum!’s chief diversity and inclusion officer spoke with Skinner last week to “apologize and discuss the situation.”

“Our goal is to ensure our policies are inclusive and keep our team members and customers safe,” Taco Bell’s statement said. “While our policies at restaurants do not prohibit Team Members from wearing Black Lives Matter masks, we are working to clarify our mask policy, so this doesn’t happen again.”

Last week, Starbucks said it was allowing its baristas and other employees to wear Black Lives Matter T-shirts and pins, reversing its policy on the matter.

Discussion Questions 

  1. What does it mean to be a “diversity and inclusion” officer?

An organization’s “diversity and inclusion” officer is someone appointed to ensure that the organization complies with federal and state anti-discrimination law. A diversity and inclusion officer also seeks to ensure non-discrimination based on the belief that it is ethical to adopt and enforce such an approach and that such an approach in the best interests (both financially and non-financially) of the organization itself.

  1. Suppose that Taco Bell decided to respond differently to the issue; i.e., suppose the company decided to prohibit employees from wearing “Black Lives Matter” masks. Would that have been a violation of law? Why or why not?

Technically, Taco Bell could prohibit employees from wearing such masks, but it (and every other company) must adopt an equitable approach in choosing to take such an approach. For example, if a company were to prohibit “Black Lives Matter” masks but allow employees to wear “White Lives Matter” masks, such an act could possibly constitute either disparate treatment or disparate impact discrimination.

  1. Do you agree with Taco Bell’s decision? Why or why not?

This is an opinion question, so student responses may vary.