The Associated Press reports that the Equal Employment Opportunity Commission is dismissing six lawsuits it brought on behalf of employees alleging workplace gender identity discrimination because the claims now conflict with President Donald Trump’s recent executive order.
I advise businesses about employment law.
I am telling my clients that despite this shameful dereliction of duty by the federal agency that enforces workplace civil rights laws, discrimination based on sexual orientation or transgender status remains illegal under federal and Utah law.
And if my clients want a second opinion, I tell them such discrimination is also immoral and reprehensible.
With active support from Utah’s predominant faith, The Church of Jesus Christ of Latter-day Saints, the state outlawed such workplace bias a decade ago in 2015. The U.S. Supreme Court did the same thing five years later when it decided three cases involving an employer that fired someone simply for being homosexual or transgender.
The lead plaintiff in those cases, Gerald Bostock, was fired for conduct “unbecoming” a county employee right after he joined a gay recreational softball league. Another company fired Donald Zarda days after he mentioned being gay. And a funeral home fired Aimee Stephens — who presented as a male when she was hired — after she informed her employer that she planned to “live and work full time as a woman.”
All three longtime employees sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. In a 6-3 ruling in Bostock v. Clayton County, Georgia, the high court held that an employer who fires an individual merely for being gay or transgender violates the law.
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” the justices explained. “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
They continued, “By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.”
The court concluded this landmark decision with these words, “Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Six justices (opinion author Neil Gorsuch, John Roberts, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer) supported the Bostock ruling. Two of them now have left the court, with Ginsburg replaced by Amy Coney Barrett and Breyer by Ketanji Brown Jackson.
Jackson likely would vote the same way as Breyer, and Barrett is by no means a guaranteed vote against the ruling. This means the court today probably would vote at least 5-4 to uphold the Bostock ruling. Neither the EEOC nor Trump have the power to overrule that decision.
And yet, the EEOC apparently has decided not to follow the mandate of the highest court in the land. This unfortunate choice not only seems illegal but also strikes me as immoral, reprehensible and downright mean.
Latter-day Saint leaders back Utah compromise
(Francisco Kjolseth | The Salt Lake Tribune) L. Tom Perry, then a Latter-day Saint apostle, left, shakes hands with Equality Utah Executive Director Troy Williams in 2015 in support of the Utah Compromise.
When The Church of Jesus Christ of Latter-day Saints supported legislation, known as the Utah Compromise, barring workplace discrimination based on sexual orientation and gender identity, that rather conservative institution defined the issue in clear moral terms.
“The church has always stood for compassion and trying to follow the example of Jesus Christ,” it explained in a March 2015 news release. “...While there has been no change in doctrine, the church seeks to protect individuals, both religious and not religious, against retaliation, firing and eviction. We do not believe individuals should be disparaged or persecuted simply for identifying with the LGBT community. The church supported the [Utah measure] because it seeks to protect basic rights of the LGBT community that are not currently protected in areas such as housing and employment.”
In explaining why the church supported nondiscrimination by others in housing and employment while seeking exemptions for itself, Latter-day Saint leaders said they based their decision on core gospel values. “If the church cannot maintain gospel standards in its operations and hiring decisions, it can no longer fulfill its mission,” the release stated. “The same is true for its affiliated organizations. By its support for this new legislation in Utah, the church is encouraging protections for LGBT people in housing and employment because it is right to do so, and because those actions do not pose a threat to religious liberty, family or marriage.”
What is the net effect of the EEOC’s decision to drop the pending cases against alleged discrimination? It condones the cruel and inhuman workplace behavior at issue in those legal disputes. I’m an older, white, straight Christian male, but I would not want to work in any of those places.
One case alleged a business discriminated against someone who identified as a gay nonbinary male by firing the person just hours after co-owners learned of the employee’s gender identity. In another case, a hotel fired a transgender housekeeper who had complained that a supervisor repeatedly misgendered the worker and made anti-transgender statements, referring to the housekeeper as a “transformer” and an “it.”
Another suit alleged that a fast-food place subjected three transgender employees to pervasive sexual harassment, with one supervisor allegedly demanding to know if one employee had a penis. In another case, a transgender cashier at an airport pizza restaurant was “outed” by a manager, called a racist, homophobic slur by co-workers, and then fired after complaining.
An Illinois hog farm was sued after a co-worker allegedly exposed his genitals to a transgender employee and touched her breasts. And, in California, a cosmetics store manager allegedly sexually harassed three gender nonconforming employees with “offensive physical and verbal sexual conduct.”
The good Samaritan points the way
(Trent Nelson | The Salt Lake Tribune) "Samaritan" by Brian Kershisnik is shown at the BYU Museum of Art in Provo in August 2024.
In Luke’s Gospel, Jesus told the story of the good Samaritan — the only one of three travelers to help a stranger in need.
“Which of these three do you think was a neighbor to the man who fell into the hands of robbers?” Jesus asked. The obvious answer — the Samaritan — was a tough pill for Jesus’ listeners to swallow, given that the Jews and Samaritans had a long-standing feud rooted in religious and political differences.
Seems like some people today — including self-professed followers of Jesus Christ — are struggling to swallow this pill, too, and to love (or even hire) neighbors who are not exactly like them. Yet Jesus said we must do unto those neighbors as we’d want them to do unto us.
I’d hire the good Samaritan in a heartbeat.
And I am urging my employer/clients to be like the good Samaritan and not engage in or tolerate workplace bias against our brothers and sisters, against our mothers and fathers, against our children, and against our friends, who are members of the LGBTQ+ community. Or against anyone based on sex, race, color, religion, age, national origin, disability or any other protected class.
Not discriminating is the kind thing to do.
It’s the right thing to do.
It’s the moral thing to do.
And despite the terrible example being set right now by the EEOC, it’s also the legal thing to do.
(Michael Patrick O'Brien) Writer and attorney Michael Patrick O'Brien says employment discrimination against transgender persons remains illegal and immoral — despite recent EEOC actions.
Michael Patrick O’Brien, who frequently represents The Salt Lake Tribune in legal matters, is a Utah writer and attorney who has advised businesses and practiced employment law for almost four decades. The League of Utah Writers named his book, “Monastery Mornings: My Unusual Boyhood Among the Saints and Monks,” about growing up with monks at an old Trappist monastery in Huntsville, the best nonfiction book of 2022.
