As the Supreme Court prepares to decide whether the 1964 Civil Rights Act protects gay and transgender people from workplace discrimination, it seems, at least to me, unlikely that a bench dominated by five very conservative men will protect gay employees.
This should be a wake-up call: We cannot count on the courts to protect our rights in the workplace. We need a Congress that will actually pass laws, and high on the list of legislative priorities should be a “just cause” law that would protect every employee from unfair terminations.
Common as a legal standard of employment across much of the industrialized world, and here routinely negotiated into union contracts, “just cause” is the principle that no employee can be fired without a legitimate, serious, work-performance reason.
Such a legal standard would empower workers to speak out about pay disparities, to combat sexual harassment and to complain about unsafe working conditions. It would give workers the power to say no to requests that fall outside the bounds of their duties or propriety.
In short, it would finally correct what has become a deeply imbalanced employer-employee relationship.
Lawyers for the Trump administration insisted at Tuesday’s high court arguments that it’s the responsibility of Congress, not the courts, to update the law to protect LGBT workers. They may be wicked but they are not wrong. The failure of Congress to do much in the way of legislating employee protections in the last quarter-century has created a vacuum that the courts have filled with a political agenda that is hostile to government regulations and worker rights.
Take 2018’s Epic Systems decision, in which the high court ruled that employers can force employees to submit accusations of unfair or discriminatory treatment to private arbitration, foreclosing class action lawsuits. To accomplish this, they radically reinterpreted the 1925 Arbitration Act.
A Congress that actually passes laws could simply overturn EPIC Systems, and make whatever narrow new standard the court defines in the current LGBT discrimination case moot. Of course, that will require a new president and a Democratic majority in the Senate that removes the filibuster as a convenient excuse for inaction. Progressive activists who will work their tails off for a Democratic majority in 2020 should demand no less than a Congress that takes swift action to give us all better job protections.
It’s encouraging that almost all of the Democratic candidates for president have produced detailed platforms for worker power, union representation and employee protections. Sen. Elizabeth Warren, of course, has a plan to protect gay and transgender workers. She also has a plan to protect workers from discrimination on the basis of pregnancy. And another to protect disabled workers. And another to protect employees who wear dreadlocks.
The fact that she proposes to amend the law in at least nine places to protect a ridiculously long list of categories of workers who continue to face discrimination belie the need for a universal right like just cause.
No worker is going to be told that the reason they are being fired is because they are gay. An employer will always invent a performance-based justification. Even if gay workers were protected by the Civil Rights Act, that law — like all current protections against unfair terminations — puts the onus on the employee to prove the ulterior motive.
A just-cause law would flip that burden onto the employer, where it belongs.
Mayor de Blasio was the first of three presidential candidates in the crowded field to have campaigned on a just-cause law; of them, only Bernie Sanders now remains. Still, it is electrifying to see one of the frontrunners for the nomination supporting a bold reform to end the everyday tyranny of the non-union workplace and to bring us in line with the kind of rights that hundreds of millions of workers the world over take for granted.
This is the future of Democratic labor policy. At least, it ought to be.