The election is over and Donald Trump is the next President of the United States. On the campaign trail Donald Trump made a lot of promises. But will any of them affect cases prohibiting sexual orientation discrimination?

In this blog post I will discuss the possible effect of Donald Trump’s presidency on federal court cases prohibiting sexual orientation discrimination. I will explain the course a case like this takes through the court system and where Trump’s influence may be felt along the way. It is important to note that no one knows what any President will do before they do it. This post is only intended to explain the process.

EEOC Takes Sexual Orientation Discrimination to Court

Since December 2012, the Equal Employment Opportunity Commission has taken the position that existing civil rights laws, particularly Title VII, prohibit sexual orientation discrimination as a part of their ban on gender-based discrimination and harassment. Under its interpretation, discrimination based on sexual orientation or gender identity are essentially punishing a person for not conforming to existing sexual stereotypes.

Based on that interpretation, the EEOC has sued a number of employers for sexual orientation or gender identity discrimination. One such case, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), is currently pending in the U.S. District Court for the Western District of Pennsylvania. Earlier in 2016, the judge in that case denied the employer’s motion to dismiss, ruling that an employee could file a claim for sexual orientation discrimination under Title VII, essentially agreeing with the EEOC’s interpretation of the law. Let’s use this case as an example to provide context to a discussion of Donald Trump’s power in this area.

What Trump’s Judicial Appointments Mean for LGBT Employees

The President of the United States cannot directly reverse court decisions. As the head of the Executive Branch, he has no direct influence over the courts. However, President Donald Trump will have the authority to nominate candidates to fill vacancies among federal court judges. This includes replacing the late Honorable Anton Scalia as a U.S. Supreme Court Justice. As of December 8, 2016, there were also 13 vacancies at the U.S. Court of Appeals level and 83 District Court vacancies. Trump will have the authority to fill all of those seats, with Senate approval.

For cases currently pending before the court, like EEOC v. Scott Medical, these appointments won’t have any immediate effect at the trial court level. However, as new sexual orientation discrimination complaints are filed they may be assigned to the more conservative judges appointed by Donald Trump. While there is no way to know how any judge will rule on a case ahead of time, more conservative judges may be less likely to agree with the EEOC’s interpretation of Title VII, and could rule in favor of employers who discriminate against their LGBT employees.

The Supreme Court and Court of Appeals

Trump’s judicial appointments at the Court of Appeals and Supreme Court level could have a broader effect on sexual orientation discrimination cases going forward. While the U.S. Supreme Court has applied the sexual stereotype standard to gender discrimination cases in the past, it has not yet heard a sexual orientation discrimination case. Appointments of judges and Supreme Court Justices who are less friendly to LGBT rights could cause the higher courts to rule against protections for LGBT employees. If they do, it would set precedent for future employment discrimination cases across the country.

However, none of this will happen tomorrow. It can take time, even years, for a case like EEOC v. Scott Medical to make its way through the court system to the Supreme Court. Right now, EEOC v. Scott Medical is still in the pretrial stages. It could take several more months for there to be a final verdict at the trial court level. Assuming the court finds that sexual orientation discrimination did occur, the employer would then have to file an appeal at the Court of Appeals level. After months of briefing schedules and oral argument, the Court of Appeals would then issue a ruling. Whichever party loses on appeal may then request permission to appeal to the Supreme Court. If that request is granted, it will be another several months before the Supreme Court renders a decision. That means any significant change in employment discrimination law will not take effect for some time to come.

EEOC Appointments Could Affect Appeals

The next blog will discuss how changes within the EEOC could affect employment discrimination cases under a Trump administration. However, there is one shift that could apply to cases like EEOC v. Scott Medical much sooner than any judicial appointment. The EEOC is part of the Executive Branch. That means the President gets to appoint its leadership. If the incoming EEOC Commissioners or General Counsel do not prioritize LGBT rights, they may choose not to appeal decisions against gay employees or file new federal lawsuits on their behalf.

If that happens, it will be up to private firms like Eisenberg & Baum, LLP, to pick up the slack. Our employment discrimination attorneys understand the reasoning behind the EEOC’s policy and know how to take these issues to court. If you are facing discrimination at work because of your sexual orientation or gender identity or expression, contact Eisenberg & Baum today to schedule a free initial consultation. We’ll explain your options and help you fight back against discrimination at work.