Whether American businesses may lawfully discriminate against their gay and lesbian employees is likely to be one of the first major civil rights questions facing President Donald Trump’s upcoming nominee to the Supreme Court.
Experts say succeeding Justice Anthony Kennedy — who is considered the court's foremost champion of gay rights — with a conservative picked from a list vetted by the Republican-aligned Federalist Society could could favor employers.
“There’s definitely a lot at stake here,” said James Esseks, a civil rights attorney with the American Civil Liberties Union who served served as counsel in Obergefell v. Hodges, the landmark 2015 case affirming the right to same-sex marriage. "Are LGBT people protected from discrimination in a way that most other people in the country are, or are we not?"
In recent months, federal courts have split over whether Title VII of the Civil Rights Act, which says that employers may not discriminate based on “sex,” prohibits discrimination based on sexual orientation. The court will review at least two petitions to review the issue when it meets in the fall to decide which cases it will hear next term.
It passed up the opportunity last term, but a split caused by a number of recent cases could shift the court's calculus. While the 2nd and 7th U.S. Circuit Courts of Appeals have found that Title VII applies to sexual orientation discrimination, the 11th U.S. Circuit ruled that it did not.