This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
On October 8, 2019, the United States Supreme Court heard oral arguments as to whether or not Title VII of the Civil Rights Act of 1964 involving sex discrimination applies to LGBT employees.
The U.S. Circuit Courts of Appeal are currently split on the issue. Hopefully, the Supreme Court will focus on the text of the law, not politics, and do the right thing here. In my opinion, the Civil Rights Act clearly protects LGBT employees from employment discrimination based on sexual orientation and transgender status. The civil rights law was written broadly and anticipates other forms of sex discrimination.
The Three Cases
The Supreme Court heard three combined cases on the issue during oral argument. They involve 3 employees, two gay males and one transgender female. The two men were fired due to their sexual orientation and the transgender woman was fired from her employment because of her gender identity. A link to the synopsis on Scotusblog can be found here.
Common Sense Should Prevail
As with so many other issues in the law, common sense has been distorted through the various legal arguments. Most individuals know that “sex” discrimination is discrimination based on some aspect of sex. Those opposing the inclusion of LGBT employees from sexual discrimination protections have tried to twist the plain meaning of the statute’s wording by claiming it to be different than it reads.
To some, it could reasonably appear that LGBT employees are attempting to enlarge the definition of a law which was meant to protect women from sex discrimination back in 1964. However, the law was also meant to broadly define sex discrimination, which can happen to anyone, regardless of whether they are straight, LGBTQ or otherwise. Opponents have argued that gender identity, sexual orientation and sex discrimination have multiple different meanings in an effort to confuse the issue.
One of the arguments put forth seems to make the concept clear to me:
The argument before the Court is that sexual orientation discrimination is sex discrimination under Title VII, because when an employer fires a male employee for dating men, but does not fire a female employee who also dates men, the employer discriminates based on sex.
History of Sex Discrimination Law is Non-Existent
Furthermore, Title VII’s ban on sex discrimination was a last-minute inclusion in the Civil Rights Act that was intended to scuttle the bill by former Congressman Howard Smith from Virginia. Apparently, Congressman Smith elicited laughter from his colleagues when he proposed this addition at the last minute. He must have been shocked when the sex discrimination law passed Congress.
As a result, the definition was left broad, without any hearings and debate to define it. Many courts and the EEOC have concluded that the law was intended to protect LGBT employees. Hopefully, the Supreme Court will do the right thing here. Nobody should be subject to sex discrimination.
A ruling, either way, is probably likely to be 5-4, either way. The swing justice is likely Justice Neil Gorsuch, who has taken the view that the text was clear in that sex discrimination could include these forms of discrimination. If the 3 employees prevail it will likely be because Justice Gorsuch and/or Kavanaugh rule with them. However, if the Court rules against LGBT employees, it will only be a matter of time before a future Supreme Court overrules them and the justices that supported this type of discrimination will be remembered poorly.
If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
The Alexandria Police Department said in a release that a handgun was confiscated from a student at Lyles-Crouch Traditional Academy (530 S St Asaph Street) today. According to the release:…
It’s been a busy news week in Alexandria. On the positive site: one of the bigger stories is that the city achieved zero traffic fatalities in 2023. It’s a significant…
If you’re looking for something to do tonight (Friday), Gadsby’s Tavern Museum is hosting a 21-and-over “Tavern Games Night“. The event is scheduled for 7-9 p.m. at Gadsby’s Tavern Museum…
The Alexandria Police Department (APD) arrested Robert Walker, a 34-year-old D.C. resident, for a carjacking just a few blocks away from APD headquarters and striking a police vehicle. Police said…
Dreaming of small-town charm with big-city convenience? Look no further than 7156 Main St in Clifton, Virginia! Nestled just 30 miles from the heart of Washington D.C., this picturesque property offers the best of both worlds.
Escape the hustle and bustle of the city to find tranquility in this quaint, historic town. With its tree-lined streets and friendly community atmosphere, Clifton is the perfect place to call home. Yet, with its close proximity to the nation’s capital, you’ll never be far from the excitement and opportunities of urban living.
Imagine weekends exploring local shops, dining at charming cafes, and enjoying outdoor adventures in nearby parks. Then, commute to D.C. for work or play, soaking in all the culture, entertainment, and career opportunities the city has to offer.
Are you looking to work on health and fitness from the comfort of your own home?
Skip the big box gym and try out our in-home personal training service. We bring the gym to you so that you can save time and avoid the hassle of going the the crowded gym.
We bring all the equipment you need for a solid workout and if you have a community gym we can use that too.
We offer programs that will help with weight loss, strength, flexibility, more energy and overall feeling better.