Immediate Effects of the Supreme Court Ruling on LGBTQ
The ruling by the
Supreme Court of the United States
(SCOTUS) on the
protection of lesbian, gay bisexual,
transgender, queer (LGBTQ) individuals
is based largely on the
inclusion by implication
(logical necessity) of LGBTQ in the
word “sex”. That word
is found in Title VII of the Civil rights
Act of 1964 as amended.
Title VII prohibits
discrimination in employment against the
named protected
classes. Some of the protected classes are race, national
origin, and
sex. Some protected classes are protected in other Federal Codes,
for example age and
disparities. Some classes are left out.
Previous to the ruling,
20 states had no laws whatsoever protecting
LGBTQ individuals in
employment. In those states, before the
SCORUS ruling, the LGBTQ
individuals had no legal recourse. In
those states today,
LGBTQ individuals can go to Federal court
with their
complaints. However they would have to file their
complaints with the
Equal Employment Opportunity Commission
(EEOC) first. The
EEOC has jurisdiction over Title VII and determines
probable cause. The EEOC
might then issue permission to file the complaint
in Federal court.
At this point the EEOC involvement ends. For the
most part the EEOC
investigates class action types of
discrimination.
In Massachusetts there
are now two options for LGBTQ
individuals.
Massachusetts already has in place a fairly strong
State statues
against discrimination of LGBTQ people, M.G.L. Chapter
151B. The
Massachusetts Commission Against Discrimination (MCAD) has a
contract with EEOC to
investigate complaints that violate EEOC codes. The
MCAD also simultaneously
will investigate the complaint as a violation of
Chapter 151B.
Should a person complain
to the EEOC first the MCAD will not
investigate the
case. From experience the MCAD takes at least two to
investigate a case. It
might be faster to file at EEOC for Federal Court or file at
MCAD and withdrawal the
case to go to State court. If you want MCAD to
hear the case before the
Commission, then the case would have remain at the
MCAD.
After the MCAD
investigation if there is a probable cause finding,
then there exist the
options of going to Federal court or to
State court, or having
the MCAD decide the complaint. Only one
option can be chosen.
Because SCOTUS has
legally given the term “sex” an inclusive
meaning, it implies that
elsewhere in the law the term “sex” will
also be inclusive, such
as healthcare, housing. The exclusiveness is
not automatic and test
cases will be needed to define each statute or code or
regulation. It is
unlikely that opposition to the inclusion would succeed as
SCOTUS would almost
certainly rule in favor of the inclusiveness.
