NEW YORK (Reuters Breakingviews) - The U.S. Supreme Court has once again joined in a game that can be thought of as the “Great American Workaround.” When politics fails, companies, consumers and others with influence get creative to keep the country functioning. A legal ruling that outlaws workplace discrimination due to sexual orientation or gender identity shows that judges know their roles, too.
The top U.S. court on Monday decreed that the Civil Rights Act of 1964 covers sexual orientation and gender identity. That’s happy news for LGBTQ people who live in the 29 states – covering more than half of the population – that don’t offer full legal protection. It’s also what society seems to want. A Harris poll in 2018 showed 80% of people “support equal rights for the LGBT community.”
But while the destination is good, the path there has been messy. Three Supreme Court justices argued on Monday that expanding LGBTQ protections is a job for Congress, not for courts – and that the existing law, which encompasses discrimination based on “sex,” is being distorted to fit the circumstances. They have a point. The trouble is that U.S. legislators are struggling to act, and not just on this issue. Politicians still can’t even agree on whether a second round of stimulus for people impacted by Covid-19 is necessary, let alone what it would look like.
That’s why companies started playing the workaround years ago. Most large businesses already have LGBTQ anti-discrimination policies – even those like oil major Exxon Mobil that refused to do so for years. Almost two-thirds of Fortune 500 companies offer transgender-inclusive benefits, according to the Human Rights Campaign.
That’s just the tip of the iceberg. On issues from working conditions to climate change, chief executives have stepped into the void. The federal minimum wage has stagnated, but companies like Bank of America and Amazon.com have raised pay anyway. Donald Trump pulled America out of the Paris climate accord, but companies like Amazon, Starbucks and Microsoft are all pledging to become carbon neutral.
When companies or judges do what the legislature can’t, they’re letting politicians off the hook. That’s not ideal. At the same time, it’s a good thing the workaround is underway, not just for millions of LGBTQ employees, but because without it the country might barely be working at all.
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