Category Seuality
Title Confusion Abouts Whether Title VII Applies to Sexual Orientation
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Confusion Abouts Whether Title VII Applies to Sexual Orientation

Federal court districts are continuing to struggle with Title VII's protection against discrimination on the basis of sex in employment decisions. Historically everyone understood and interpreted "sex" under Title VII to be male/female, including the courts. As time has rolled forward a number of courts are redefining the intent and meaning of Title VII to include sexual orientation as a protected class. If this prevails as the dominate view in our jurisprudence then faith-based organizations likely will have to muster together to legislate new protections.

Current district court rulings over the last two years:

  • Eleventh Circuit; Evans v. Georgia Regional Hospital. No claim under Title VII for sexual orientation protection. This decision was further supported whe the court denied an en banc review in July.
  • Seventh Circuit; Hively v. Ivy Tech Community College. Became the first circuit to protect sexual orientation claims under Title VII.
  • Second Circuit; Zarda v. Altitude Express, Inc. Took the same line of reasoning as the 7th and protects sexual orientation claims.

In the Eighth Circuit a case is making its way to the appellate level and will add to the scorecard. In Horton v. Midwest Geriatric Management, the case was initially dismissed on the grounds that Title VII does not protect sexual orientation but it has been appealed and we await a decision from the Eighth Circuit.'As different circuit courts continue to come down one way or another this issue will most likely wind up at the Supreme Court; possibly sooner than later.

No Fundamental Right to Literacy. Gary B. v. Richard Snyder, No. 2:16-cv-13292 SJM-APP, (E.D. Mich. July 27, 2018)

A class action lawsuit made up of former Detroit public school students tried to sue the state on grounds that they have a fundamental right in the "access to literacy". They claim once Michigan came in and took over Detroit's public schools their schools continued to deteriorate to the point that it prevented education from happening. The court, like many before it, denied the students' claim that the U.S. Constitution provided a right to literacy.

What makes this claim unique is the plaintiff's argument as to why they believe there is a fundamental right. They attempted to expand upon the Obergerfell v. Hodges, 135 S. Ct. 2071, 2015. Readers may recall the Obergerfell decision found a new fundamental right within the U.S. Constitution to gay marriage. Here the students argued that just as the denial of gay marriage in Obergerfell was so stigmatizing so was not having access to literavy. That such a denial so demeans and stigmatizes that the liberty one enjoys is denied. The court denied this expansion of Obergerfell but one wonders where this line of thinking will continue to move forward.

Union Dues. Janus v. AFCSME, 585 U.S. ___ (2018).

The Supreme Court sided with workers against unions overturning 41 years of court precedent. Since the late 1970's the U.S. Supreme Court had required employees in states without right to work laws to still at least pay unions partial dues under the theory that unions were negotiating contracts and work conditions for all employees in a company covered by a union contract. As late as 2016 this understanding was challenged all the way to the Supreme Court but left intact. This summer the justices reversed course citing that even the work of unions to negotiate contracts and worker conditions was a form of First Amendment protected speech and the government had no business mandating that citizens be required to underwrite union speech they may disagree with.

The implications could be vast for unions and particularly in the realm of K-12 education. Teacher unions far and away outspend any other group when it comes to public policy debates on education and have been some of the most vocal opponents to all forms of school choice from charter schools to parent education savings accounts. Teachers unions have been brought a little closer to an even playing field as the rest of the free market—if they want dollars from teachers they will have to make a compellingcase why teachers should hand over dues. It is yet to be seen what ipact this ruling will have financially for unions. Various unions have begun the work of trying to modify state laws in light of this ruling in order to once again use the force of law to tie dues to keeping one's job.

Woods v. Seattle's Union Gospel Mission, 17-2-29832-8 SEA, (Sup. Ct. King County July 9, 2018).

This case is of interest as it is one of the first to be decided since the Materpiece Cakeshop decision was handed down. Here, MAtthew Woods was a volunteer attorney with the GOspel Misison and when a full-time position for a staff attorney opened up he applied but was denied due to his orientation as bisexual. Washington state does not have a non-discrimination law protecting sexual orientation but it exempts religious employers. Woods made the argument that even though the Mission is religious the role of attorney is not and the court should adopt a job duties test to determine if religious protections should apply to each individual position.  The court rejected such a stringent test and upheld Washington state law dismissing the case because the Mission is a religious employer.   The judge's order to dismiss cited not only Masterpiece Cakeshop but also EEOC v. RG and GR Harris Funeral Homes, Inc., two of the most recent cases to settle sexual orientation and religious freedom conflicts in the workplace. Woods is appealing.

LLU 29.1

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