Legal battle over LGBTQ workplace protections moving closer to the Supreme Court

The chances are a bit higher today that the U.S. Supreme Court will consider the question whether gays should be protected from discrimination on the job. If the high court does extend job protections to gay employees, it would mean a big change for states likes Pennsylvania. 

Unlike Delaware and New Jersey, Pennsylvania does not have a state law protecting LGBTQ people from discrimination in areas of housing, employment and “places of public accomodation,” such as supermarkets, theaters, and hotels.

That could change if the Supreme Court takes up the issue, said Temple University law professor Nancy Knauer.

Last month, the 11th Circuit Court of Appeals, which covers Georgia, Florida and Alabama, ruled that the provision of the 1964 Civil Rights Act banning workplace discrimination on the basis of a person’s sex does not include a person’s sexual orientation. 

This week, the 7th Circuit Court of Appeals, which includes Illinois, Indiana and Wisconsin, ruled it does include sexual orientation, creating what’s called a “circuit split.”

“With a circuit split, it means it’s very likely the issue could be resolved by the Supreme Court,” said Knauer.

Tobias Barrington Wolff, a law professor at the University of Pennsylvania, said this week’s 8-to-3 ruling, written by a well-respected judge, could be persuasive.

“It’s always been the case that drawing some kind of sharp distinction between discrimination based on sex and discrimination based on being gay, lesbian or bisexual was difficult to do,” Wolff said. “So what the 7th Circuit Court of Appeals said was that in fact there is no sharp line between those two things, that when you fire somebody for being a lesbian, you’re firing her because you think she’s not acting appropriately to her sex and to her gender.”

Wolff said that decision could also influence other federal appeals courts around the country, including the 3rd Circuit in Pennsylvania, should the issue come up there.

If the Supreme Court upheld the 7th Circuit’s ruling, “we would for the first time have federal anti-discrimination protections for sexual orientation,” Knauer said.

“That is particularly important for states such as Pennsylvania where there is not a statewide anti-discrimination provision.”