In recent months, there has been a lot of worrying among the LGBTQ community about whether they would lose significant rights in the workplace as present Donald J. Trump works to undue the protections given to LGBTQ workers under the previous administration. Even though Mr. Trump had vowed to leave those protections in place while he was on the campaign trail, he appears to be rolling them back via executive order.
However, according to a recent news article from the New York Times, gay rights advocates have just scored a major victory as the federal appeals court in Chicago ruled that the Civil Rights Act of 1964 does extend its protections to the gay community. This means that they cannot be harassed based upon sexual orientation, and if they are, it will be considered a violation of federal law.As our Los Angeles labor lawyers can explain, while the U.S. Supreme Court recently extended the right to same sex marriage to all Americans, the court had not yet addressed the issue of whether they are afforded protection from harassment and discrimination based upon sexual orientation.
The Civil Rights Act came at time when the country was being torn apart by racial discrimination. There were many examples of restaurants and other businesses that were refusing to serve African American customers. Congress was able to step in using what is known as the Dormant Commerce Clause. Congress has the right to regulate anything involving interstate commerce. However, Congress wanted to extend this less than plenary power at the time to include things that had at least a tangential relationship to interstate commerce.
In the case of a restaurant, Congress reasoned that since the restaurant was serving food and ingredients that came from other states, and they were serving customers who were engaged in interstate travel, they could invoke the commerce clause to outlaw this discrimination. It should be noted that states probably could have done this without Congress, but the states where much of this discrimination was occurring were not willing to step in and stop it.
While this recent decision out of Chicago was not from the U.S. Supreme Court, it was from a U.S. Court of Appeals, and that is the highest federal court to reach such a determination as of this time. The next step would be an appeal to the U.S. Supreme Court, but that doesn’t look like it will be happening at this time. There are variety of reasons for that. On the one hand, there are only eight justices, though that is likely to change soon. On the other hand, even when Justice Scalia was still alive and sitting on the court, the court legalized same-sex marriage, and it is quite possible the court would extend the protections of the Civil Rights Act nationally in affirming the federal court’s holding. This is not what defendants in this case or their political allies want, so they may not push it any further.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Civil Rights Act Protects Gay Workers, Court Rules, April 4, 2017, By Matthew Haag and Niraj Chokshi, New York Times
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