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KU discrimination law expert says Supreme Court ruling on LGBTQ workers is ‘historic,’ but ‘there’s still a lot of work to do’

Source: 
Lawrence Journal-World
Author: 
Conner Mitchell
Date: 
Monday, June 15, 2020

The U.S. Supreme Court on Monday issued a ruling protecting as many as 13 million Americans from being fired solely because of their sexual orientation or gender identity.

Though it was a landmark decision, a professor and expert in discrimination law at the University of Kansas School of Law said a gap still needs to be addressed in the 28 states, including Kansas, that don’t offer protections for LGBTQ workers.

“Kansas doesn’t have a state law that prohibits discrimination in employment based on sexual orientation or gender identity,” Kyle Velte, a KU associate professor of law, told the Journal-World. “… So there is still some gap here because Title VII doesn’t reach into smaller employers.”

Title VII, the founding principle of the Civil Rights Act of 1964, says that employers can’t discriminate on the basis of race, color, religion, sex and national origin. Monday’s 6-3 Supreme Court ruling said those protections also prohibit discrimination on the basis of sexual orientation — but it only applies to employers with over 15 employees.

That means that a small mom-and-pop shop in Kansas that employs four people, for example, could still fire an employee for being gay, Velte said.

And that’s not to say Monday’s ruling wasn’t vitally important to the 42% of LGBTQ Americans who could’ve been fired a day prior for their sexual orientation or gender identity, she added.

“This is historic, it’s important and it’s wide-reaching, but there’s still a lot of work to do,” she said. “This is just employment. This is not about public accommodations where we’re talking about going into a hotel or doctor’s office or a restaurant and being turned away for being LGBT. That can still happen in Kansas, as well.”

Kansas Gov. Laura Kelly on Monday said she was pleased with the court’s ruling and said one of her first actions after assuming office was to reissue protections to workers employed by, or contracted to work for, the state that were stripped away during Republican Gov. Sam Brownback’s administration.

“I was delighted they ruled that way and put an end to any discussion of the ability to discriminate,” she said. “I’m glad to see that’s gone on nationwide.”

Democratic Lawrence Rep. Boog Highberger told the Journal-World he was surprised at the ruling, given the court’s usually conservative advantage.

“I am very pleased that they interpreted the plain language of the law to give our LGBT fellow citizens the protection against discrimination that they deserve,” he said.

Sen. Tom Holland, D-Baldwin City, said in a short email to the Journal-World that the ruling was important for all Kansans.

“It’s a great day for all Kansans in the workplace!” Holland wrote.

Other members of Lawrence’s state delegation could not be reached for comment. U.S. Rep. Steve Watkins, a Kansas Republican who represents the Lawrence area in Washington, D.C., also did not return a request for comment from the Journal-World.

Kansas has a long history of excluding LGBTQ workers from discrimination protections — a history that’s been briefly interrupted during stints with Democratic governors, Velte said.

Those governors, who most recently include Kelly and former Gov. Kathleen Sebelius, were able to provide protection for state workers through executive orders. Sebelius’ protections were rescinded by Brownback’s administration, and Kelly’s order still leaves a gap for workers not employed by the state of Kansas, Velte said.

“It left many people in Kansas susceptible to being fired for their sexual orientation or gender identity,” she said. “To my understanding there’s never been any statewide anti-discrimination law in Kansas that will protect virtually all Kansas employees from discrimination.”

Velte also took issue with the three conservative justices who dissented from the majority opinion: Brett Kavanaugh, Samuel Alito and Clarence Thomas. In her view, the three put politics over a judicial principle they all have valued their entire careers — a usually conservative legal interpretation called textualism.

Textualism, she said, prioritizes the interpretation of the ordinary meaning of legal text, where no consideration is given to ideas such as the intention of the law when passed. Neil Gorsuch, a conservative justice and President Donald Trump’s first appointment to the land’s highest court, wrote the majority opinion from a textualist mindset.

“The fact that we have three dissenting conservative justices really shows me a kind of lack of intellectual integrity,” Velte said. “In every prior case they will use textualism, but when it came to this case, or when textualism would have resulted in a pro-LGBT ruling, they somehow decided that textualism wasn’t going to cut it this time.”

“It should have been 9 to 0,” she continued.

There also remains the concern that Title VII can be overturned legislatively by Congress, since the Court’s ruling addresses a congressional statute, not a Constitutionally related matter.

“This isn’t over over until we see what Congress is going to do with it,” she said. “Given what’s going on in Washington, I wouldn’t be surprised if there’s some legislation introduced quickly to undo this decision by the court today, so there’s that risk as well.”

That said, the fact that 22 states already had protections for LGBTQ workers written into their laws is a positive sign that the attitude in the United States is shifting, Velte said.

“I think most people, frankly, are surprised to learn that you can still be fired for being gay. I think as a nation collectively, we’re kind of at the point where most people would say ‘that’s not cool,'” she said. “So hopefully we’re at a political moment where the majority would think it’s not crazy to protect people from being fired for their sexual orientation.”

In the early 1990s Lawrence was the first city in the state to add sexual orientation to the list of protected classes in its human relations ordinance, alongside the usual classes such as religion, ancestry and age.

Faculty name: 
Kyle Velte