You are listening to an episode of Ask the Experts on Talk 860 WWDB AM with host Steve O and weekly guest, LGBTQ legal expert Angela Giampolo.
This week we open with a short discussion of the Marriage Equality Act and how the repeal of Roe v Wade could eventually affect LGBTQ marriage.
Our main topic is employment law. Angela and Steve discuss:
- Is sexual orientation/gender identity protected by employment law?
- Who is protected by Title 7 of the Civil Rights Act of 1964?
- What are the limitations of Title 7?
- What is an “at will” employment agreement?
WHY IS A MARRIAGE EQUALITY ACT RELEVANT NOW?
With the fall of Roe v. Wade, marriage equality is at risk. Post-Roe, now is the time for politicians to sort of reiterate and vocalize what their stance would be if there was a vote. Because one of the things that the President and Congress can do is a marriage equality act, right. For example, about nine or ten months ago now, New Jersey codified marriage equality. It is law that LGBTQ folks can marry in New Jersey. Federally, it would require a vote of a majority of the House and two thirds of the Senate right. To undo that is very hard, much harder than overturning a court case. And like with Roe in Pennsylvania and all over the news, you’re hearing states calling on legislatures to codify abortion. Now you also have the federal government talking about a marriage equality act, knowing that if the question goes up to the Supreme Court that it will likely be overturned.
To get ahead of that happening, we are calling on legislators to bring forth a marriage equality act, sort of the antithesis of DOMA (the Defense Against Marriage Act). You now have politicians that are vocalizing how in 2015 they thought marriage equality was wrongly decided, and they still think it’s wrongly decided now. If it were to come up for a vote, they would vote against it. It feels out of left field because Roe v. Wade was about abortion and not about LGBTQ rights. But if Roe v. Wade could be overturned, and a question like abortion is left to the states, then without fail, marriage equality could be overturned. Whether or not LGBT folks can get married would be left to the states.
Everybody who’s worried about what’s going to happen if it goes up to the Supreme Court is rightfully so worried. We are truly next on the chopping block. The way that I’ve been describing it to clients is your house is not on fire, but the house three doors down from you on your block is on fire. And if the house three doors down from you is on fire, wouldn’t you get our things together? Specifically, getting your estate planning in order, any confirmatory adoptions in order, transgender name changes or gender marker changes in order is preparing your home, because the house three doors down is on fire.
Marriage equality is based on the same progeny of cases as abortion. Ultimately, what they said is that the right to privacy is not inherent in the Constitution. They’re not wrong in the sense that it’s not written into the Constitution. The word privacy does not make an appearance in the Constitution, and these Supreme Court justices are textualists. Starting with the Griswold case and sort of the progeny moving forward, the inherent right to privacy was read into the Constitution. But with Dobbs, the Court is saying that the right to privacy is not there. As a result, any right based on the right to privacy is in danger. This includes contraception, interracial marriage, the decriminalization of gay sex, and of course marriage equality.
ARE SEXUAL ORIENTATION AND GENDER IDENTITY PROTECTED BY EMPLOYMENT LAW?
Since Bostock, sexual orientation and gender identity is federally protected in employment law. This amended Title VII of the Civil Rights Act of 1964 and said that sexual orientation and gender identity is a protected class, regardless of the laws of your state. Here in Pennsylvania, we still do not have employment discrimination protection at a state level for LGBTQ folks. Differently, New Jersey has had it for over a decade. The state in which you live in may or may not have employment discrimination protection. Now because of Bostock, you have it at a federal level through Title VII. But there are limitations to the protections there. For example, Title VII only applies to entities or companies in excess of 15 employees, which can be very limiting with the millions and millions of small businesses that we have in this country.
ARE ONLY EMPLOYEES PROTECTED BY TITLE VII?
You don’t have to be a W-2 employee to be protected. Candidates being interviewed and 1099 contractors are protected by Title VII, but discrimination in this context is much more difficult to prove. There can be discrimination in the actual interview, or there can be discriminatory practices in how people interview. Because of these instances, a lot of companies are reaching out to me to learn how they can make their interview processes more inclusive.
WHAT IS AN AT-WILL EMPLOYMENT AGREEMENT?
Pennsylvania is an at-will state, where you’re not guaranteed an employment agreement. If you’re an at-will employee, the boss can come in and say, I’m firing you because you’re gay, or because I hate that yellow shirt, or because you smell. It could be any reason they can come in and you’re an at-will employee and they can terminate you at will. If you’re faced with an at-will employment choice, to the extent that you can advocate for yourself to have an employment agreement, do so. That’s my biggest piece of advice. If you have the ability to advocate for an employment agreement, then that binds you and rises your level of protection even more.
Episode Transcript
WHY IS A MARRIAGE EQUALITY ACT RELEVANT NOW?
With the fall of Roe v. Wade, marriage equality is at risk. Post-Roe, now is the time for politicians to sort of reiterate and vocalize what their stance would be if there was a vote. Because one of the things that the President and Congress can do is a marriage equality act, right. For example, about nine or ten months ago now, New Jersey codified marriage equality. It is law that LGBTQ folks can marry in New Jersey. Federally, it would require a vote of a majority of the House and two thirds of the Senate right. To undo that is very hard, much harder than overturning a court case. And like with Roe in Pennsylvania and all over the news, you’re hearing states calling on legislatures to codify abortion. Now you also have the federal government talking about a marriage equality act, knowing that if the question goes up to the Supreme Court that it will likely be overturned.
To get ahead of that happening, we are calling on legislators to bring forth a marriage equality act, sort of the antithesis of DOMA (the Defense Against Marriage Act). You now have politicians that are vocalizing how in 2015 they thought marriage equality was wrongly decided, and they still think it’s wrongly decided now. If it were to come up for a vote, they would vote against it. It feels out of left field because Roe v. Wade was about abortion and not about LGBTQ rights. But if Roe v. Wade could be overturned, and a question like abortion is left to the states, then without fail, marriage equality could be overturned. Whether or not LGBT folks can get married would be left to the states.
Everybody who’s worried about what’s going to happen if it goes up to the Supreme Court is rightfully so worried. We are truly next on the chopping block. The way that I’ve been describing it to clients is your house is not on fire, but the house three doors down from you on your block is on fire. And if the house three doors down from you is on fire, wouldn’t you get our things together? Specifically, getting your estate planning in order, any confirmatory adoptions in order, transgender name changes or gender marker changes in order is preparing your home, because the house three doors down is on fire.
Marriage equality is based on the same progeny of cases as abortion. Ultimately, what they said is that the right to privacy is not inherent in the Constitution. They’re not wrong in the sense that it’s not written into the Constitution. The word privacy does not make an appearance in the Constitution, and these Supreme Court justices are textualists. Starting with the Griswold case and sort of the progeny moving forward, the inherent right to privacy was read into the Constitution. But with Dobbs, the Court is saying that the right to privacy is not there. As a result, any right based on the right to privacy is in danger. This includes contraception, interracial marriage, the decriminalization of gay sex, and of course marriage equality.
ARE SEXUAL ORIENTATION AND GENDER IDENTITY PROTECTED BY EMPLOYMENT LAW?
Since Bostock, sexual orientation and gender identity is federally protected in employment law. This amended Title VII of the Civil Rights Act of 1964 and said that sexual orientation and gender identity is a protected class, regardless of the laws of your state. Here in Pennsylvania, we still do not have employment discrimination protection at a state level for LGBTQ folks. Differently, New Jersey has had it for over a decade. The state in which you live in may or may not have employment discrimination protection. Now because of Bostock, you have it at a federal level through Title VII. But there are limitations to the protections there. For example, Title VII only applies to entities or companies in excess of 15 employees, which can be very limiting with the millions and millions of small businesses that we have in this country.
ARE ONLY EMPLOYEES PROTECTED BY TITLE VII?
You don’t have to be a W-2 employee to be protected. Candidates being interviewed and 1099 contractors are protected by Title VII, but discrimination in this context is much more difficult to prove. There can be discrimination in the actual interview, or there can be discriminatory practices in how people interview. Because of these instances, a lot of companies are reaching out to me to learn how they can make their interview processes more inclusive.
WHAT IS AN AT-WILL EMPLOYMENT AGREEMENT?
Pennsylvania is an at-will state, where you’re not guaranteed an employment agreement. If you’re an at-will employee, the boss can come in and say, I’m firing you because you’re gay, or because I hate that yellow shirt, or because you smell. It could be any reason they can come in and you’re an at-will employee and they can terminate you at will. If you’re faced with an at-will employment choice, to the extent that you can advocate for yourself to have an employment agreement, do so. That’s my biggest piece of advice. If you have the ability to advocate for an employment agreement, then that binds you and rises your level of protection even more.