Opinion: Does the law protect the LGBTQ community from discrimination? It should be an easy answer.
The U.S. Supreme Court is seen at sunset in Washington on Oct. 4, 2018. By Jenny Yang April 26 at 8:49 AM Jenny Yang, commissioner of the U.S. Equal Employment Opportunity Commission from 2013 to 2018, is a senior fellow in the Center on Labor, Human Services, and Population at the Urban Institute.
Under Supreme Court precedent, the question should be whether an employer relied on sex-based considerations or took gender into account when taking the challenged employment action. In 1989, the Supreme Court established in Price Waterhouse v. Hopkins that discriminating against an employee for not conforming to gender stereotypes — in this case, not walking, talking or dressing “more femininely” — is sex discrimination.
In Baldwin, the commission explained that the concept of sexual orientation is inseparable from and cannot be explained without reference to sex. Indeed, an employer that fires a woman because she has a female spouse has taken gender into account where the employer would not have fired a man for that reason.
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