Recently, a monumental Supreme Court decision clarified that employees cannot be fired or discriminated against due to their LGBTQ status. Justin Hill and Lawrence Morales, both of San Antonio, have handled many cases involving employees that have suffered discrimination.
Justin Hill: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill Law Firm. For confidentiality reasons, names and amounts of any settlements have been removed; however, the facts are real and these are the cases we handle on a day-to-day basis.
Justin Hill: All right, welcome to this episode of Hill Law Firm Cases. On Monday, June 15th, 2020, the US Supreme Court came out with an opinion Bostock versus Clayton County monumental decision. I’m here with Lawrence Morales, who’s one of the best, and in my opinion, the best employment lawyer in town for plaintiffs, or probably a business too, but they’re not normally the people I represent. For people that have been wronged on the job and need some answers, Lawrence is the guy to go to. He’s the guy I personally go to. I asked him to be on the show today to talk about the Bostock versus Clayton County opinion. Him and I are going to do some cases and represent some people who are going to fall under these new protections. Lawrence, what happened?
Lawrence Morales: On Monday, there was a landmark decision that basically extends protection under one of our discrimination laws to about one and a half million more Texans than previously existed. Let me back up and tell you a little bit about the origins of this law. The law is the Title VII Civil Rights Act of 1964. That is the law that basically bars discrimination and has barred discrimination against race, national origin, sex, color, for the last 40 years. A big question has been whether people who are transgender, sexual orientation, and gender identity are protected classes under that law.
By way of background, we’ll get a lot of calls sometimes and people will say, “I got fired because I’m a homosexual. Can I bring a claim?” Unfortunately, until Monday, the answer to that question was, “It depends on where you live.” There were 29 states in the United States that basically did not have any state law protection for gender identity or sexual orientation, and Texas was one of them.
We had to say, “Sorry, go to the EEOC, file a charge of discrimination. This is an issue that’s going up to the Supreme Court, and hopefully, it’ll be decided in your favor.” Thankfully, on Monday, that day finally came, and now it is safe to say that sexual orientation and gender identity are protected classes under Title VII.
Justin: I love the fact that you pointed out 1.5 million Texans are going to fall under this new law or this new decision, which means 1.5 million Texans have additional protections on the job by a law that was passed by a Texan and LBJ.
Lawrence: That’s right. It was signed into law by LBJ. That’s exactly right. The good way to describe it was after the 2015 same-sex opinion, you could get married on Monday morning to somebody of your same sex, but then you can get fired that afternoon because you got married to somebody in your same sex. On Monday that changed. Do you want me to tell you the story about how ironically we have a segregationist to thank for the law that came or the decision that came out on Monday?
Lawrence: Okay. The story is about a guy named Howard Smith–
Justin: I don’t get a lot of questions, so I appreciated that question.
Lawrence: I’m trying to help. Howard was a United States Congressman from Virginia for about 30 years between the 1930s and the 1960s. Among other things, he was an unapologetic segregationist. He opposed racial integration. At the time, in the early 1960s, there was a lot of movement with black rights. Martin Luther King was making great strides in trying to push for an Equal Rights Amendment. Title VII was this law that was on the table that would have protected race, national origin, and color.
Howard Smith was essentially the Rules Committee Chair for the US House of Representatives at this time. He had basically vowed to delay the passage of this law and to delay the vote on this law because they didn’t want to get passed because of the protections concerning race discrimination.
Because the opponents to that view wanted to use some obscure law in the House of Representatives, he was forced to bring it to a vote. Two days before the vote was basically taken, he decided to add sex into the law. Now it would read; race, color, national origin, and sex. Now, keep in mind that at this time, I think that there were 12 women serving in the House of Representatives out of 435. There were only two people serving in the Senate. Although there’s a debate about this, a lot of people believe that the reason why Congressman Smith put that into the law was to be a poison pill because he thought that it would be so repulsive because at the time actually, gender equality was more radical and more fanciful than race [crosstalk]
Justin: That was before the push for the ERA Amendment which Phyllis Schlafly murdered.
Lawrence: Right around that time. If that was Congressman Smith’s intention, it backfired because it passed the House of Representatives, I think 168 to 133. It passed the Senate, and our Texas president, LBJ signed it into law in July of 1961.
Justin: Some poetic justice.
Lawrence: It is some poetic justice.
Justin: What does it mean practically, or do we even know what it means practically in terms of who in the LGBTQ community is going to be part of the protected group? Does somebody who is transgender, do they fall into that? Do you have to be homosexual to fall under? Which members of this new group actually got protections and which are still up in the air?
Lawrence: Justice Gorsuch basically says that sexual orientation in all forms and gender identity in all forms are going to be protected under the term sex.
Justin: Oh, wow. Okay.
Lawrence: I guess I will say it’s a 20-page opinion, and I will say it’s worth a read.
Justin: It’s pretty short.
Lawrence: Yes. I will say-
Justin: For the Supreme Court.
Lawrence: -there’s 40 pages of dissent from Justice Kavanaugh and Justice Alito, you can skip that portion, but the main portion of it basically says that if you take a homosexual person, a man who likes a man, if you have a problem with that, is a problem because if a woman likes a man, you wouldn’t have a problem with that. The only difference there is the fact that one person is a man and one person is a woman, and that is based on sex. As a result of that, that violates Title VII. As regard to gender identity, if now you basically identify being with a man and that departs from how the gender that you were-
Justin: Born with.
Lawrence: -classified, born with. If that’s offensive to you, it wouldn’t be offensive to you if it was consistent with the gender that you were born with. As a result, that is based on sex. As a result, any form of sexual orientation, any form of gender identity is now protected as sex under Title VII.
Justin: What does this mean practically for people, say they were fired two years ago, and their employer said, “You’re gay. I’m firing you because you’re gay. Good luck suing me.” Do they have any recourse?
Lawrence: Unfortunately, the answer is, in the two-year example, probably not. I’m actually going to read if you don’t mind, there’s a very nice way that Justice Gorsuch says this. He says, “We can’t deny today’s holding that employers are prohibited from firing employees on the basis of homosexuality, or transgender status is an elephant. This elephant has never been hidden in a mouse hole. It has been standing before us all along.” What he’s basically saying is that the term sex in the Civil Rights Act of 1964 is broad enough now and had been broad enough since the beginning to include transgender and sexual orientation. The problem is that under the EEOC laws, you have 300 days from the date of discrimination in Texas to bring a charge of discrimination. If you have been discriminated against based on your sexual orientation or your gender identity within the last 300 days, call a lawyer, file a charge of discrimination, because that 300 days is an unforgiving deadline.
Justin: What if somebody did that, whatever, 2, 5, 10 years ago, they went through the EEOC process, the EEOC said, “Hey, we don’t cover your gender status or the fact that you’re a homosexual.” Do they have any recourse or do the fact that the EEOC got it wrong so long ago close their options?
Lawrence: That’s a good question. Unfortunately, I don’t know. I will say we had been recommending for a long time for people to file a charge of the discrimination, even though it was uncertain whether they were protected under the law. All of those people that have charges in the queue, those people are fine, whether people from years ago who didn’t bring a claim, because it wasn’t recognized at that time, whether they have some cause of action. I just don’t know the answer. I hope they do, but my gut tells me that they may not. Justin: Clarity from the courts is probably coming at some point.
Lawrence: Yes. There’s going to be a lot of questions. There’s a lot of issues that are raised from opponents of this particular ruling about the effects of it, what effect it’s going to have on bathrooms, whether employers are required to provide gender neutral bathrooms or locker rooms or that kind of thing. Justice Gorsuch says, okay, those are issues that we’re going to have to decide as they come up. Right now, unequivocally, it’s a violation to fire somebody merely because they’re gay or transgender.
Justin: For any listeners who are out there and they say, “Look, a 100 days ago, I had an adverse employment decision that was made against me. I’m pretty sure it was because I identified different. Then my boss thinks is appropriate.” What are their avenues? What should they expect in terms of process?
Lawrence: In order for you to bring a lawsuit based on gender discrimination or sex discrimination, you first have to file a charge of discrimination with the Equal Employment Opportunity Commission. They can call a lawyer, somebody like me or you, to help file that type of charge, or frankly, they could just go to the EEOC’s website and file a charge.
There are ways to expedite the charging process and sometimes lawyers can help with that. I would say, if you think you’re close to that deadline, call somebody fast because once that 300 days passes, then you basically lose that protection. I will say, not to be technical, if there’s anybody listening outside of Texas, there is a possibility that you can only get 180 days. It just depends on whether your state law has a different type of law protecting sex discrimination.
Justin: That’s a good point. This is not legal advice for anybody who’s listening. This is generally the law as we know it. In Texas, they call us, they call you, and they say, I need to file a charge of discrimination. Why do they need a lawyer? What is the process? Why can’t they go in front of a judge and jury? What should they expect?
Lawrence: We file a charge of discrimination. The EEOC basically has six months to investigate whether there is in fact discrimination. Frankly, the EEOC is inundated with all types of claims and it’s hard for them to process those investigations within six months. Very frequently after the six months, we’ll actually request what we call a right to sue letter. That’s the document that we need to actually file a lawsuit in court.
If the EEOC does complete their investigation and conclude that there is discrimination, oftentimes they’ll work with the lawyers to try to help resolve the case so that it can be completed that administrative stage. I will say 99% of the cases, we get that right to sue letter, and we have to file a lawsuit within 90 days.
Justin: Somebody who gets their right to sue letter, you’re their lawyer. They’ve got the best team on the planet to handle this case. They know they were fired for reasons that they’re not allowed to be fired for. What can they expect in terms of damages? What is available to them?
Lawrence: You’re going to have lost wage damages. Basically, if you were terminated, what would you have earned had you not been terminated, that is going to be mitigated or essentially reduced by any amount of money that you earned or should have earned after the termination. You’re also entitled to emotional distress, mental anguish damages, punitive damages, that can be kept depending on the size of your employer, but it could be up to $300,000 depending on the size of your employer for mental anguish. In addition, you get attorney’s fees if you’re successful in the case.
Justin: All right. Have you had any of these cases come in just yet since the opinion came out?
Lawrence: Not since the opinion came out, but we expect with 1.5 million more protected folks that hopefully we get some of those calls.
Justin: Is there anything else about this opinion or this basically not new area of the law, but broadened area of the law that you think our listeners should know?
Lawrence: I think that other than that, the opinion is inspiring in a sense. It really Justice Gorsuch went I think out of his way to explain how fundamental and basic this ruling is. If you’re somebody in the LGBT community, read it. It will make you feel good because it very persuasively summarizes the legal arguments as to why you’re entitled to protection.
Justin: From a judge, for people that don’t pay attention to this, whoever is listening to this; from a judge who everyone that is an ally or advocate of the LGBTQ community thought was going to be bad for them. He’s the one that wrote this opinion, and I’m not going to sit here and say, he’s a big ally of anybody that needs help from the court system, but in this instance, that’s a big reason that this opinion so important is that he wrote it.
Lawrence: He’s Trump’s first appointee to the Supreme Court, which was a touchy subject because we know that Merrick Garland was nominated by President Obama, never got a hearing in front of the United States Senate. I’ll say that he does it based on his interpretation of the words in the statute, but it is a matter of fact, a summary of how simple this is, and that you were being treated differently simply because of sex and it needs to stop.
Justin: All right. For our listeners, Lawrence and I, we plan on working these cases together. Anybody who’s been discriminated against or fired due to gender identity or sexual orientation can call my law firm at 210-960-3939, or jahlawfirm.com, or they can reach out to Lawrence’s firm. What’s the contact info?
Lawrence: 210-225-0811, or www.themoralesfirm.com.
Justin: We might not have the answer you want, but we’ll be able to walk you through your options. It’s very rare that there is a new civil rights forefront in America anymore. This seems to be a new avenue where people that have been treated poorly for things that are outside of their control are finally getting rights that have not been available to them for a long time.
Lawrence: Let me say one thing, is that in addition to losing your job because of sexual orientation or gender identity, if you’ve been subjected to a hostile work environment because of those things, that’s now covered, too.
Justin: What does that mean?
Lawrence: For example, sexual harassment, like for a long time, women and men sometimes as well, for example, may be subjected to a hostile work environment, whether it’s sexual advances or crude jokes, or all types of pejorative statements and comments made to being a woman. Now if you’ve been harassed or ridiculed because of your gender identity or your sexual orientation, then there is a hostile work environment claim under Title VII for you, because that is based on sex.
Justin: That’s an important point because I bet there’s a lot more of that happening out there than people losing their jobs because their bosses, they don’t like who you love.
Lawrence: That’s fair. Even jokes, every day where people are making fun of you, making comments, who knows. That would be covered if it crosses the line. Then we can obviously talk about that some other time.
Justin: As this flushes out, Lawrence, you’re going to come back on, we’re going to talk about what we’re working on. We’re going to get some of these cases. We’re going to work on some of these cases together, and we’ll update listeners and update your firm, my firm, our clients, on what we’re working on and how this works out, because there’s still a lot of unknowns, I think it’s fair to say.
Lawrence: No doubt.
Justin: All right. We’ll have you back on. We’ll catch up on where this law is going now, but this is a new area or a broadened area of the law. Thank you for being on, and we’ll talk to you soon.
Lawrence: Thank you.
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