These Are the Next Battles in the Fight for LGBTQ Worker Rights

The United States has to make a number of changes to strengthen unions and labor laws to ensure that LGBTQ workers are properly protected.

LGBTQ people were handed a significant legal victory this week.

On Monday, the U.S. Supreme Court made a historic decision in Bostock v. Clayton County that has huge implications for LGBTQ equality. In a 6-3 ruling, the Court held that the Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on sex, also prohibits discrimination against LGBT people.

The court explained that when an employer “relies in part on an individual employee’s sex when deciding to discharge the employee,” that is a violation of the law.

That applies to LGBTQ people, the court added. In the majority opinion, Justice Neil Gorsuch wrote that “an employer who fires an individual merely for being gay or transgender violates Title VII.”

Chase Strangio, deputy director for transgender justice at the ACLU LGBT & HIV Project, said the ruling will ultimately affect LGBTQ equality on a wider scale “in the context of housing, education, and health care,” calling it a “historic win.”

But the fight for job security and economic equality is far from over.

LGBTQ people still face numerous hurdles in the United States, where unions have significantly less power than in other countries. Employers are also granted the ability to provide little to no reason for firing a worker, and LGBTQ workers still must meet a high bar under Title VII to prove discrimination.

Moshe Marvit, fellow at the Century Foundation, said that although Title VII is stronger than the National Labor Relations Act in terms of its protections and remedies for workers, it’s still fairly weak compared to the labor protections other countries provide. The United States would have to make a number of changes to strengthen unions and labor laws to ensure that LGBTQ workers are properly protected.

“If you look at other Western European countries, for instance, what you often find is that you have stronger unions with higher membership rates but you also have the unions take part in industry-wide sectoral bargaining … it is much more geared toward protecting workers and giving them a voice in the workplace which American law really isn’t.”

One of the biggest barriers to preventing the discriminatory firing of LGBTQ workers is at-will employment. Although there are exceptions, including a unionized workforce and executives who tend to have contracts with their employers, at-will employment means that employers can fire a worker without notice and don’t have to provide a clear reason.

Instead, employers are free to provide a nebulous explanation for why they terminated a queer employee. And although workers can fight back, often it is only the sloppiest employers or those without good human resource departments who are held legally accountable for that discrimination.

“Unless you’re a member of a union and there’s a bargaining agreement that gives just cause, they could just say you’re not a team player. You’re not a fit,” Marvit said. “So they don’t even necessarily have to give a reason that is related to your work. People don’t seem to like you or we’re deciding to get rid if you. There’s no seniority rights in most workplaces unless you’re part of a union so we’re just cutting back and, you know, we decided you’re it.”

The burden is still on the worker to prove they were fired for their sexuality or gender and not a work-related reason, which can be difficult.

“[Title VII cases] are not easy cases,” Marvit said. “… It seems unfair that an employee should have to prove the reasons. The employer knows why. They should have to prove the reasons were work-related. Now if you can prove that’s the reason you got fired, you can receive some monetary relief [but] you still won’t get your job back.”

Celine McNicholas, director of government affairs at the Economic Policy Institute, said forced arbitration also makes it so that fewer workers can pursue a class action suit. Lawyers may not be as eager to take on individual discrimination claims, she said, compared to class actions, which are more cost-effective for them.

In the case Epic Systems Corp. v. Lewis, which the U.S. Supreme Court decided in 2018, the court ruled that arbitration agreements requiring individual arbitration are enforceable under the Federal Arbitration Act despite a provision in the National Labor Relations Act that says employees have the right to bargain collectively and work together to protect each other.

“Whether it’s a discrimination case or a wage theft case, whatever the employment matter is, they can legally be forced into waving the right to go to court to begin with because of forced arbitration, and when they do end up in arbitration, they are there on an individual basis,” she said.

McNicholas added that she is concerned about the growth of forced arbitration and its effects on worker rights. A 2019 Economic Policy Institute and Center for Popular Democracy report estimated that by 2024, more than 80% of private sector and non-unionized workers will be subject to forced arbitration that bans class actions. She said political leaders need to work to close loopholes in labor laws that have been exploited to essentially weaken worker protections.

More broadly, if more workers were unionized, they could further protect themselves from discriminatory termination, labor experts say.

The percentage of U.S. wage and salary workers in a union is still fairly low, at 10.3% in 2019 — down by 0.2 percentage point from the year before, according to the Bureau of Labor Statistics. Nonunion workers had median weekly earnings that were 81% of unionized workers’ median weekly earnings.

“Increased unionization would certainly help any worker that Title VII tries to protect,” Marvit said. “It’s easier to vindicate your rights under a contract than it is under the law for many reasons. You can negotiate protections in the process and workers can decide what kind of protections they want … It adds a level of transparency and a grievance procedure.”

Additionally, he said, it would be easier to increase unionization if penalties for union-busting were increased, along with other potential reforms that would ease the burden for workers to unionize.

Published with permission of The American Independent Foundation.