For the past several weeks, the Equality Ohio Legal Clinic has covered the trio of cases in front of the Supreme Court concerning Title VII employment protections for LGBTQ people on the basis of sex. I highly recommend the articles written by my colleagues Emily Meyer and Kate Mozynski if you need a quick refresher of the oral arguments or want to learn more about how the language used during the oral arguments demonstrates the continuing need and opportunity to educate court officials about LGBTQ people.
The Court’s upcoming decisions only directly encompass employment discrimination protections on the basis of sex. The Zarda, Bostock, and Harris cases specifically raise questions in the employment context that trigger Title VII sex discrimination protections. At the federal level, civil rights protections are statutorily organized in a number of sections, commonly referred to as “Titles”, on the basis of a general topic. Title VII is the section that includes employment protections. Beginning in the Civil Rights Era, Congress enacted and amended the Civil Rights Act to protect specific groups of people who have historically faced unfair treatment from discrimination in areas like voting, public education, public accommodations, employment, and housing on the basis of a protected class like race, color, national origin, religion, sex, age, or disability.
Exactly if, and how, the Court’s eventual decision impacts discrimination protections in other areas is obviously unknown at this time. However, the Court’s decision has the potential to impact other protections in public education, public accommodations, and housing. This potential derives from the fact that many courts look to federal employment case law as instructive when deciding cases involving discrimination in other protected areas. This makes sense because the logic prohibiting discrimination applies with equal force regardless of the context in which it is applied!
Unfortunately, the expansion of this logic may have other limitations; this logic can only be applied if discrimination is prohibited on the basis of sex. It may surprise many people, but the Civil Rights Act does not currently include protections on the basis of sex (in addition to sexual orientation and gender identity or expression) in regards to discrimination in places of public accommodations. Title II of the Civil Rights Act protects the full and equal enjoyment of public accommodations without discrimination on the ground of race, color, religion, or national origin, but NOT sex. Fortunately for Ohioans, state law currently protects people from sex discrimination in places of public accommodation.
What exactly is a “public accommodation”? Federal law defines a place of public accommodation as any place “if its operations affect commerce, or if discrimination or segregation by it is supported by State action” and also outlines many specific entities, including but not limited to inns, hotels, motels, restaurants, cafeterias, lunchrooms, lunch counter, soda fountain, food counters, gas stations, theaters, concert halls, sports arenas, and stadiums. Ohio law also broadly includes any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public
If the Supreme Court decides that the prohibition against sex discrimination includes sexual orientation and gender identity or expression, the impact on the decision on Ohio’s public accommodations law is unknown. LGBTQ people in Ohio may still face legal discrimination in other areas, including in places of public accommodations which further shows the need for the Equality Act at the federal level and the Ohio Fairness Act at the state level. Unfortunately, LGBTQ people in Ohio know that not all unfair treatment is against the law. However, not since the time leading up to the Obergefell decision has there been such anticipation for the potential expansion of legal protections for the LGBTQ community. Given the simultaneous movement of bills in Congress and the General Assembly, there is much to be excited and hopeful about legally speaking!