InFranchina v. City of Providence, the city argued that any harassment Franchina had experienced was based on her sexual orientation, not her gender. The Court concluded that Franchina had presented a "plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female."

That part of the case would likely have been rendered moot by the June 15, 2020 decision of the U.S. Supreme Court that an employer who fires or otherwise discriminates against an individual simply for being gay or transgender does so "because of... sex." Prior to this, it had often been observed that there was no federal law that protected employees from discrimination on the basis of their sexual orientation or sexual identity. In the cases decided in June of 2020, the Court explained that the ordinary meaning of the term "because of" incorporates the traditional standard of "but-for causation," [this should sound familiar to you, we discussed it in the negligence topic] meaning that so long as the plaintiff's sex was one but-for cause of the adverse employment action, that is sufficient to trigger application of the CRA. In his dissenting opinion, Justice Kavanaugh maintained the Civil Rights Act was never intended to protect the LGBT community and that the responsibility to amend the statute belongs to Congress. You can read more about the cases in anarticle published The National Law Review.

Do you think it is appropriate for the U.S. Supreme Court to interpret the prohibition against discrimination on the basis of sex to include protections for the LGBT community, or do you agree with Justice Kavanaugh that this question is one that should be reserved to Congress? Remember our discussion from Module 1, Topic 2. Justices on the Supreme Court are appointed for life. Unlike members of Congress, they are not accountable to voters. Does that impact your views on this question?