Providing a workplace free from discrimination has been an ongoing issue for over a century and a half. Congress passed laws barring workplace discrimination as far back as the Civil Rights Act of 1866—a set of laws barring racial discrimination in the workplace which were promptly neutered by a subsequent Supreme Court ruling.
Since then, both State and Federal governments have passed laws to help ensure equality in the work place. Federal law has done this, in part, through Title VII of the Civil Rights Act of 1964. Title VII forbids employers from discriminating against employees on the basis of race, gender, national origin, color or religion. It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination.
Extending this protection against discrimination in the workplace to the LGBT community has, unfortunately, been an uphill battle. Just this week, North Carolina convened an emergency session of their general assembly in order to pass a law preempting cities from enacting ordinances from including LGBT persons in their anti-discrimination standards. This law came in direct response to a Charlotte ordinance banning discrimination against LGBT persons which was passed in February of this year.
22 states have passed laws which add protection against discrimination based on either sexual orientation, gender identity, or both. However, no federal appeals court has ever explicitly ruled that Title VII prevents employers from discriminating on the basis of either sexual orientation or gender identity. The U.S. Equal Employment Opportunity Commission, or the EEOC, is looking to change that.
The EEOC is a federal agency tasked with enforcing Title VII and other federal workplace discrimination laws. For the last several year,s they have been working to advance the cause of LGBT people in the workplace. In July 2013, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination. Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. Recently, the EEOC has brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation.
The Cases Brought by the EEOC
The two cases brought by the EEOC both allege a pattern of discriminatory harassment against an employee due to their sexual orientation.
The first lawsuit is against Scott Medical Health Center on behalf of Dale Baxley. Mr. Baxley alleges the he quit due to repeated harassment from his supervisor about his sexual orientation. Mr. Baxley’s supervisor repeatedly called him by derogatory slurs for a homosexual man during Mr. Baxley’s shifts. His supervisor also made derogatory comments about Mr. Baxley’s relationship with his fiancé, including asking “who’s the butch and who is the bitch.” Mr. Baxley complained about the treatment, but after no action was taken he resigned.
The EEOC’s second lawsuit is on behalf of Yolanda Boone, a lesbian woman, and is against Pallet Companies. Ms. Boone also alleges that her supervisor repeatedly harassed her, making bigoted comments such as “I want to turn you back into a woman.” After Ms. Boone complained about the harassment, she was asked to resign. When she refused to do so, she was fired.
In both cases, the EEOC argument is the same. They argue that sex-based discrimination, a protected class under Title VII which protects both men and women, includes discrimination against someone for not conforming to traditional gender stereotypes or norms. Title VII’s prohibition of sex discrimination means that employers may not rely upon sex-based considerations or take gender into account when making employment decisions. The EEOC argues that the definition of sex discrimination has evolved over time and that where employers make employment decisions based on sex stereotypes or gender norms, this is a sex-based employment decision. They argue that Mr. Baxley and Ms. Boone’s supervisors’ objections to homosexual persons comes from just such gender stereotypes.
Why Sexual Orientation and Gender Identity Should Be Protected Classes
The EEOC raises persuasive arguments as to why sexual orientation should be considered a protected class under the classification of sex-based discrimination. These same arguments support protecting employees from discrimination based on their gender identity.
In order to move beyond classifying sexual orientation and gender identity as sex-based discrimination, there would need to be a Congressional Act adding both to the list of protected classes in Title VII. As it stands, a bill of this nature is extremely unlikely to make its way through Congress. However, both sexual orientation and gender identity should qualify as protected classes based on the legal justifications provided for declaring other groups as protected classes.
Courts have historically looked at three elements when forming a new protected class: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics. Both sexual orientation and gender identity unarguably qualify on the first two elements. The LGBT community has faced discrimination (economic and otherwise) and hate crimes since the U.S. became an independent nation. After the American Revolution, same-sex relationships were a felony in the United States. Currently, 68% of LGBT persons report discrimination in employment and 16% of all reported hate crimes are committed against LGBT persons. This same discrimination in the workplace shows the economic disadvantages the LGBT community faces.
Some argue that orientation or gender identity are not immutable, despite substantial evidence to the contrary. Studies on the issue have found that sexual orientation and gender identity are either genetic, or influenced by both genetics, hormones, and environmental influences. Either way, sexual orientation and gender identity are not something chosen like a passing fad, but fundamental parts of what makes up a human being. They are certainly more immutable than a person’s religion, which Title VII already treats as a protected class—even covering some white supremacist groups.
The lack of federal protection against employment discrimination allow people like Dale Baxley and Yolanda Boone to be treated as sub-humans in the workplace. Sexual orientation and gender identity both easily pass the test for a protected class. The EEOC is taking steps to help further the cause, but it is time to extend the protections of Title VII to the LGBT community.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law