U.S. Supreme Court to rule whether Civil Rights Act protects gay or transgender employees
By Russ Bynum and Angeliki Kastanis
Associated Press
Rumors started circulating around the fire station in Byron, Georgia, within a year after the medical treatments began. The fire chief’s once-crewcut hair was growing longer, and other physical changes were becoming noticeable. Keeping quiet was no longer an option.
The chief said that once members of the tiny Fire Department were told, word spread “faster than a nuclear explosion” through Byron — a city of about 4,500 in a farming region outside Macon known for growing Georgia’s famous peaches. The fire chief was undergoing a gender transition and would continue to run the department as Rachel Mosby. A City Hall staffer told Mosby many were stunned because “I was the manliest man anyone had met in their lives.”
“They initially took it very well, much to my surprise,” Mosby said. “I heard a lot of comments like, ‘Chief, you don’t have anything to worry about. We’ve got your back.’”
It didn’t last. As a man, Mosby served as Byron’s fire chief for a decade until the beginning of 2018. Then Mosby started coming to work as a woman, and the city fired her less than 18 months later. Her June 4 termination letter cited “lack of performance.” Mosby insists the only thing that changed was her gender.
“They didn’t want somebody like me in that position,” she said, “or any position with the city.”
It’s not illegal under Georgia state law to fire someone for being gay or transgender. Twenty-eight U.S. states have adopted no laws that prohibit workplace discrimination targeting LGBT employees. Only a small percentage of cities and counties offer protection at the local level. So Mosby, like thousands of other LGBT Americans, has sought recourse under the federal law that makes sex discrimination illegal at work.
The U.S. Equal Employment Opportunity Commission has treated LGBT-based job discrimination cases as sex discrimination since 2013. But that could soon end, depending on how the U.S. Supreme Court rules in cases it heard Oct. 8 that deal with the firings of gay men in Georgia and New York state and a transgender woman in Michigan.
The key question: Do firings and harassment based on a worker’s sexual orientation or gender identity qualify as sex discrimination under Title VII of the Civil Rights Act?
A ruling that says the federal law doesn’t protect workers targeted because they’re gay or transgender could leave millions vulnerable in more than half of U.S. states, an Associated Press analysis found.
Only 21 states have their own laws prohibiting job discrimination based on sexual orientation or gender identity. Wisconsin outlaws discrimination because of sexual orientation but doesn’t protect transgender workers.
And fewer than 300 cities and counties have local ordinances protecting LGBT workers, according to an advocacy group.
That patchwork of state and local laws leaves large gaps where LGBT workers have no job protection beyond federal claims under Title VII. About half of the nation’s estimated 8.1 million LGBT employees live in states where job discrimination laws don’t cover them, according to the UCLA School of Law’s Williams Institute.
“If the Supreme Court sides against LGBT employees, it means they have to be really cautious and careful about living their lives openly and proudly,” said Jillian Weiss, a New York attorney who focuses on LGBT discrimination cases. “They may encounter a lot of discrimination, and there may not be anything they can do about it.”
The AP found workers are particularly vulnerable in the South, home to an estimated 35% of LGBT adults. Out of 16 states the U.S. Census Bureau defines as the South, only Maryland and Delaware prohibit discrimination against gay and transgender workers. Protection at the local level is sparse, with most Southern states having five or fewer cities or counties that shield private-sector LGBT workers.
South Carolina offers no protection at the state or local level. And Arkansas, North Carolina and Tennessee each passed laws blocking local governments from having their own anti-discrimination ordinances that cover LGBT workers.
Those large gaps mean only about 18% of adults in the South are protected against LGBT-based job discrimination, compared with about 89% in the Northeast, according to Naomi Goldberg of the Movement Advancement Project, an LGBT-rights think tank that tracks anti-discrimination laws.
The Supreme Court’s upcoming decision, not expected until next year, could make or break Lonnie Billard’s discrimination lawsuit in North Carolina against the Roman Catholic Diocese of Charlotte and an affiliated high school. A federal judge put Billard’s case on hold until the high court rules.
Billard, a substitute teacher and longtime employee at Charlotte Catholic High School, was fired after announcing on Facebook in 2014 that he was marrying his male partner.
Attorneys for the diocese said Billard was let go for “advocacy in favor of same-sex marriage in violation of the Catholic Church’s fundamental beliefs.” They said the school could legally fire him in part because of its religious affiliation.
Billard’s case illustrates a dilemma that advocates say more gay couples could face if the Supreme Court, which declared same-sex marriage legal in 2015, decides federal law doesn’t protect them from harassment at work for being openly married.
“You get married on Saturday and fired on Monday, and there’s no protection,” said Luke Largess, one of Billard’s attorneys.
Advocates say the EEOC’s involvement is making a difference. The commission reports it received more than 8,600 LGBT-based discrimination complaints in the six-year period through September 2018. More than 1,300 cases ended with the workers who filed claims receiving some benefit.
Brandi Branson, a transgender woman who was fired by a Florida eye clinic in 2011, got a $150,000 settlement from her former employer after the EEOC sued on her behalf.
“It meant a lot. It meant somebody heard me,” Branson said. “I felt validated in myself as a person and also in my claims that I was wronged.”
Critics say the EEOC overreached by extending Title VII protections to LGBT workers. The federal law doesn’t mention sexual orientation or gender identity. While it prohibits job discrimination based on sex, Congress didn’t consider that to include LGBT discrimination when the law was passed in 1964, said attorney John Bursch of the Alliance Defending Freedom.
Bursch represents a Michigan funeral home that fired transgender woman Aimee Stephens in 2013 in one of the cases before the Supreme Court. Bursch argues Congress would need to change the law for it to cover LGBT discrimination.
“No matter what you feel about the substantive issue of LGBT employment protections, everyone should be upset that a government agency ... could punish someone based on a change in law they could not have anticipated based on its plain text and its interpretation for 50 years,” Bursch said.
In Georgia, Mosby is still waiting to hear whether the EEOC will pursue her case against the city of Byron — and whether the Supreme Court’s ruling might upend it.
After making her transition public last year, Mosby said, she was ordered to start wearing a uniform the first day she came to work in a skirt. Previously, Mosby often wore suits and ties. When Mosby fired a reserve firefighter who called the chief a slur to her face, the firefighter appealed and was reinstated by the city.
Meanwhile, Byron’s City Council in January changed its personnel policy to eliminate appeals for any department heads the city fires. Still, Mosby said she was surprised when Derick Hayes, Byron’s city administrator, fired her months later.
Hayes cited three reasons for Mosby’s firing in her termination letter: that she was responsible for a backlog of business licenses awaiting approval; that she attended only five classes at a recent fire chief’s conference, wasting the city’s money; and that she failed to maintain certification as an arson investigator.
Hayes didn’t return a phone message seeking comment. Byron Mayor Lawrence Collins denied Mosby was fired because she’s transgender.
“The quick answer on that is no. I think the records reflect that,” Collins said, declining to comment further.
Mosby said being jobless left her in financial straits. The public humiliation of her firing further strained relationships with her family, already stressed following her transition.
“I’ve lost my family, I’ve lost my house,” Mosby said. “Now I’m living with friends that keep a roof over my head and food in my stomach, so I’m not having to live in my car. It’s been utterly devastating.”
