Applying Heightened Scrutiny to Sexual Orientation Discrimination

A recently-issued federal court of appeals ruling showed that justices are looking to require a heightened standard for employers who attempt to justify discrimination against employees based on sexual orientation.


Our experienced Costa Mesa employment lawyers are aware that the U.S. Supreme Court made an historic ruling when it struck down the Defense of Marriage Act during the summer. The substantive meaning of the holding and the intent were clear immediately – a federal law that is discriminatory in nature is demeaning to the couple whose choices are protected by the U.S. Constitution.

Still, it was not so obvious how such discrimination cases would be handled in the future. This most recent decision may shed some light.

The recent ruling by the Ninth Circuit Court of Appeals held that a court must utilize what is called “Heightened Scrutiny” when it comes to lawyers selecting jurors. While the ruling is directed toward the voir dire process, the  broader application and effect is that claims of discrimination may be measured under this new standard.

Although the Ninth Circuit case did not explicitly state what level of scrutiny would be applied to future litigants who identify as homosexual, the use of the term heightened scrutiny is a step toward a broader application, in many respects.

What does the term heightened scrutiny really mean though?

The terminology is used to describe the level of inquiry and the very high burden the government must meet to justify a law that is discriminatory.

Throughout U.S. Supreme Court jurisprudence, multiple classifications of scrutiny have developed. There are deferential standards, which tend to be a bit more lax, and then there are heightened standards, which the court has applied here.

This decision can only be overturned by a special panel of Ninth Circuit judges or the U.S. Supreme Court. Unless that happens, West Coast litigants will have additional legal arguments for raising challenges to a variety of laws that may discriminate on the basis of sexual orientation.

Whether other federal circuit courts will adopt this same strict interpretation remains to be seen. However, given the Defense of Marriage Act ruling, the repeal of Don’t Ask, Don’t Tell and other decisions that have expanded the rights of lesbian, gay, bisexual and transgender individuals, we fully expect future courts to deal more harshly with employers who deem it acceptable to discriminate against workers on this basis.

Costa Mesa employment lawsuits can be filed with assistance from the Nassiri Law Group, practicing in Los Angeles, Riverside, and Orange County. Call 949.375.4734.

More Blog Entries:

$43 Million recovered for Sexually Harassed Workers, January 7, 2014, Los Angeles Employment Lawyer Blog

Family and Medical Insurance Leave Act – Paid FMLA Introduced, December 28, 2013, Los Angeles Employment Lawyer Blog

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