It’s a brisk Sunday morning, and nearly 100 people are singing hymns at the steps of St. Louis City Hall. The congregation waves rainbow and transgender pride flags and hoists picket signs that demand civil rights for LGBTQ workers.
Among the protesters is Beth Gombos, who says they’re "terrified" by the possible outcomes of three ongoing U.S Supreme Court cases.
The court could rule next year that federal civil rights law doesn’t prevent employers from firing people for being gay, bisexual or transgender. If the court decides against the employees in the cases, Missouri’s estimated 180,000 LGBTQ adults would be left with little recourse against discrimination in the workplace.
“People are already fighting to keep their jobs,” Gombos said. “If anything, we need more protections. This would remove everything that we’ve got.”
Rally organizer Rainbow Workers’ Alliance called for area LGTBQ workers to turn to unions as a source for protection and urged people at the event to petition employers to update contracts with anti-discrimination language for LGBTQ people, ahead of the court’s decisions.
Gombos said those protections might have helped them when harassment drove them out of more than 10 jobs over a decade. Gombos is genderqueer and uses the pronouns “they” and “them.”
At some jobs, coworkers would ask invasive questions about Gombos’ sex life and genitals. At others, Gombos recalls coworkers threatening, grabbing and physically assaulting them. Reporting problems to managers sometimes resulted in retaliation, cut hours or outright firing, Gombos said.
“From a manager standpoint, everything was fine. Then they hired this queer, and now everybody's got this drama going on about personal stuff,” Gombos said. “So I was the problem, and I was the one that had to go.”
Missouri’s ‘patchwork’ civil rights
The Supreme Court’s decisions could leave workers like Gombos with few options, said Peggie Smith, a law professor at Washington University.
Smith said she expects the Supreme Court, with its new conservative-leaning majority, to likely rule against the employees. Such a ruling would mean that employers could legally deny a promotion, decrease hours or even fire an employee because of gender identity or sexuality.
“All of those issues suddenly become scenarios where, if you're the employee, you may have no protection whatsoever,” Smith said.
That’s because of Missouri’s “patchwork” approach to civil rights law, Smith said.
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County and municipal governments can enact laws that prohibit anti-LGBTQ discrimination at both public and private sector workplaces. But only 18% of Missouri’s adult population is covered by such laws, Movement Advancement Project, a nonprofit that tracks nationwide nondiscrimination laws, has found.
Missouri’s Human Rights Act prohibits discrimination based on race, religion, sex and other categories statewide. But it does not specifically name sexual orientation or gender identity.
That means individual judges often decide: Does discrimination based on sex include discrimination based on LGBTQ status?
It’s the same question the Supreme Court is now considering.
A complex legal landscape
Last week, the Supreme Court heard arguments in three cases about interpretations of Title VII of the Civil Rights Act of 1964. The federal statute makes it illegal for employers to discriminate against individuals because of their sex. The court’s decisions will likely determine whether the meaning of “sex” in the statute includes gender identity and sexual orientation.
The decisions are expected to be handed down by June 2020.
Historically, the Supreme Court has treated discrimination based on sexuality and gender as subsets of sex-based discrimination. The Equal Employment Opportunity Commission, which enforces federal employment nondiscrimination laws, currently uses that interpretation. The Supreme Court decisions will determine whether the commission can continue to do that.
In August, Missouri Attorney General Eric Schmitt signed onto a brief arguing that the Supreme Court should rule against the employees. His spokesman Chris Nuelle said Schmitt, a Republican, thinks state legislatures — not courts — should decide nondiscrimination laws.
“The brief is about examining the original intent of the law and then debating legislative powers versus judicial overreach,” Nuelle said in a statement. “And I have to say Missouri Attorney General Eric Schmitt believes strongly that every person no matter their race, creed, zip code or gender should be treated with dignity under the law.”
For more than 20 years, Democratic legislators have annually introduced a bill, the Missouri Nondiscrimination Act, that would add LGBTQ status to the list of protected categories in the statewide Human Rights Act. But the Missouri House and Senate have never passed the legislation.
Seeking alternatives
That’s why advocates with the Rainbow Workers’ Alliance, which hosted the rally last weekend, say LGBTQ people can’t rely on the Supreme Court or the state Legislature for protection. The group called for every union in Missouri to commit to adding nondiscrimination language to contracts that don’t have it.
Some have already turned to unions for this kind of support.
Laura Kelley said she joined a union early in her career.
“I got into a union right away because I knew being LGBTQ was a fireable offense here in the state of Missouri,” she said.
Now Kelley leads OUTreach, a nationwide initiative that works to add LGBTQ protections to United Food and Commercial Workers’ contracts. Locally, the union represents workers at Schnucks, Dierbergs and other local food service companies.
Many St. Louis workers with UFCW have recently gotten those protections in their contracts, according to union representatives. It’s an extra level of legal certainty “so that we don't leave a loophole for any employer to be able to say that they won't deal with an issue,” Kelley said.
Kelley said she’s watching the Supreme Court proceedings closely.
“If the Supreme Court isn't going to protect us as human beings,” she said, “then the unions are going to step up even harder than we did before.”
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