Expanding Civil Rights: How Can the US Eliminate Sexual Orientation Discrimination in the Workplace?

In December 2011, Cook Paper Recycling Corporation fired James Pittman, an openly gay man, solely due to his sexual orientation, according to a lawsuit Pittman filed against his former employer. In the lawsuit, Pittman alleges that he endured continual disparaging and homophobic comments from fellow employees, including the company president, for seven years before the company fired him. Pittman’s original lawsuit in Jackson County, Missouri failed in 2013, yet still hoping for legal recourse, Pittman appealed the ruling. However, in October 2015 the Western District Missouri Court of Appeals denied Pittman’s appeal in a 2-1 decision because Missouri is one of 28 states that does not explicitly prohibit employment discrimination on the basis of sexual orientation (Keller).[1] In other words, gay and lesbian Americans in 28 states could lose their jobs at any time with no legal recourse or hope for justice.

As James Pittman’s case indicates, gay and lesbian Americans lack some of the legal protections the United States already rightly affords to other minority and vulnerable groups. Federal law currently prohibits employment discrimination on several bases. For example, Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. In addition, the Age Discrimination in Employment Act of 1967 prohibits employment discrimination against people 40 years of age or older. Finally, Title I of the Americans with Disabilities Act of 1990 bans employment discrimination against a qualified person with a disability (“Laws Enforced by EEOC”). These laws secure the legal protection of these minority groups against employment discrimination, reflecting the United States’ commitment to the values of freedom, equality, and inclusiveness. Further reflecting these values, a majority of Americans favor extending workplace protections to gays and lesbians: 72 percent of Americans support granting anti-discrimination employment protections to gay and lesbian Americans, and as of 2014, 75 percent of Americans mistakenly believed that these protections already exist (Jones, Cox, and Navarro-Rivera). These statistics reveal Americans’ desire to protect gay and lesbian citizens against employment discrimination.

However, the prevailing interpretation of these laws fails to provide such a safeguard for gay and lesbian Americans. If the United States is truly committed to those values of freedom, equality, and inclusiveness, American social policy must change in order to shield Americans against employment discrimination on the basis of their sexual orientation. But the question remains: what is the best course of action to redress this issue? How can the United States most quickly and effectively protect gay and lesbian Americans against employment discrimination?

Activists have embraced two possible courses of action to rectify this problem. First, some propose enacting state and local laws explicitly banning employment discrimination on the basis of sexual orientation. Numerous technology industry leaders embraced this tactic in a joint statement in April 2015. In the statement, executives from over 50 companies such as Twitter, Yelp, Airbnb, and Netflix urged “all legislatures to add sexual orientation and gender identity as protected classes to their civil rights laws” (“Historic Statement by Tech Industry Leaders”). Second, others favor enacting sweeping federal legislation that protects gay and lesbian Americans against employment discrimination throughout the country. One such piece of legislation is the proposed Equality Act, which would amend the Civil Rights Act of 1964 to explicitly protect gay and lesbian Americans from employment discrimination. According to Louise Melling, a lawyer with the American Civil Liberties Union, the Equality Act is a “visionary piece of legislation” that provides the nation with the opportunity to “take a giant step forward to provide additional protections to millions of Americans who face discrimination every day.” Thus, comprehensive legislation at the federal level could also possibly guarantee employment protections for gay and lesbian Americans.

However, neither of these tactics is likely to quickly or effectively eliminate sexual orientation employment discrimination. First, allowing each state to adopt its own sexual orientation anti-discrimination laws would likely take many years until each state in the country passes legislation. Additionally, merely waiting for each state to pass its own law does not ensure that each state actually will pass a law. While legislation in all fifty states would solve the problem, there is no guarantee that each state will pass a law. Second, federal legislation also has practical constraints. The Equality Act is not the first bill Congress has considered that would forbid employment discrimination on the basis of sexual orientation. As Ana Hopper points out, an earlier bill, the Employment Non-Discrimination Act of 2013, “specifically targeted discrimination against [gay and lesbian] people in the employment context, and has been repeatedly defeated” in Congress. Hopper adds that the Equality Act “has very unlikely chances of passing” in the near future and that “even supporters of bill recognize the difficulty of pushing [it] through Congress,” mainly because the bill does not grant employers exemptions based on deeply held religious beliefs. In short, Congress has been unwilling in the past to protect its gay and lesbian constituents, and gives little indication that it is prepared to do so now. Thus, while federal legislation could unequivocally forbid employment discrimination against gays and lesbians across the United States, such a bill will likely face a protracted path to becoming law—if it passes at all.

A third way of proceeding avoids the shortfalls of enacting both state and federal legislation: a judicial interpretation of Title VII of the Civil Rights Act that bans employment discrimination due to sexual orientation. Title VII proclaims, “It shall be an unlawful employment practice for an employer…to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” Endorsing a reinterpretation of Title VII, Major Velma Cheri Gay urges the US Supreme Court to interpret the law’s prohibition of discrimination “because of sex” as also precluding discrimination based on sexual orientation. I contend that the Supreme Court could conclude as such through two interpretations of existing law.

First, the Supreme Court could rule that discrimination because of sexual orientation also constitutes discrimination because of sex. For example, in Pittman’s case, Cook Paper Recycling harassed and fired him because he is gay, meaning that he is attracted to other men. However, the company did not harass or fire all people who are attracted to men, since doing so would discriminate against straight women and be blatantly illegal under Title VII to. It follows, then, that the company fired Pittman for possessing a certain quality (being attracted to men), while it would have not fired a woman for possessing that same quality. In other words, one cannot discriminate based on a worker’s sexual orientation without first considering the worker’s sex. Therefore, discrimination based on sexual orientation inherently discriminates based upon a consideration of sex. In this sense, any discrimination based on sexual orientation is equivalent to discrimination “because of sex” because employers reject a characteristic in one sex while accepting it in the other. The United States Equal Employment Opportunity Commission favors this interpretation, arguing that “discrimination against an individual because of that person’s sexual orientation is discrimination because of sex and therefore prohibited under Title VII” (“Facts about Discrimination…”). Thus, the Supreme Court could rule that sexual orientation discrimination constitutes sex discrimination and is therefore already illegal under Title VII of the Civil Rights Act of 1964.

Second, the Supreme Court could rule that that the prohibition of discrimination “because of sex” applies to discrimination based on stereotyped gender roles. As Major Velma Cheri Gay writes, past Supreme Court decisions have established the precedent that “sex stereotyping is arguably an included prohibition” of Title VII (97). Moreover, sexual orientation discrimination represents a form of sex stereotyping gay and lesbian workers, Gay avers, violates “the gender norm that men should only be attracted to women and that women should only be attracted to men” (97). Thus, sexual orientation discrimination is illegal because it is equivalent to sex stereotyping, which the Supreme Court has previously recognized as violating Title VII. Judge Anthony Rex Gabbert echoes this reasoning in his dissenting opinion in Pittman’s case, writing, “allegations of discrimination based upon a person’s sexual orientation (or preference) and gender stereotype also state claims as they are encompassed by the term ‘sex’” (Pittman v. Cook Paper Recycling Corp.). In other words, the Supreme Court could rule that discrimination against gays and lesbians embodies discrimination based on sex stereotypes, which the Court has interpreted as tantamount to discrimination because of sex, and is therefore illegal.

Granted, there is no guarantee that the Supreme Court will favor either of these interpretations in a possible ruling. And by no means should activists and policymakers withhold support from state or federal sexual orientation anti-employment discrimination laws. But, just as the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage throughout the United States (when neither the federal government nor state legislatures were prepared to do so), so too could a Court ruling prohibit sexual orientation employment discrimination more quickly and effectively than new legislation at either the federal or state level. For this reason, activists should prioritize achieving a Supreme Court ruling prohibiting employment discrimination based on sexual orientation while also retaining new legislation as a secondary priority in case the Court rules unfavorably.

In short, the United States must protect its gay and lesbian citizens against employment discrimination. However, activists and policymakers should not simply leave these protections for individual states to enact, as this process would likely take many years and is not sure to succeed. Furthermore, federal legislation, while more effective than state legislation if it were to pass, is unlikely to succeed in the near future, given Congress’ general inertia as well as the polarization of contemporary American politics. The best way to solve the problem, then, is for social activists to press for a United States Supreme Court ruling that bans sexual orientation employment discrimination under existing law.

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[1] While transgender Americans are also vulnerable to employment discrimination, this piece limits its scope to sexual orientation discrimination for the sake of concision and in light of available evidence. Discrimination based on gender identity is also a serious problem that deserves societal attention and action.

Works Cited

Civil Rights Act of 1964. Public Law 88-352, Title VII, Sec. 703, 78. U.S. Statutes at Large (July 2, 1964).

“Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, and Gender Identity.” EEOC.gov. US Equal Employment Opportunity Commission, n.d. Web. 12 Jan 2016.

Gay, Major Velma Cheri. “50 Years Later…Still Interpreting the Meaning of ‘Because of Sex’ within Title VII and Whether It Prohibits Sexual Orientation Discrimination.” Air Force Law Review 73 (2015): 61-109. Print.

Hopper, Ana. “Sound the Death Knell of Discrimination – The Equality Act Will Protect You.” Campbell Law Observer. Campbell University School of Law, 24 Aug. 2015. Web. 16 Nov. 2015.

Jones, Robert P., Daniel Cox, and Juhem Navarro-Rivera. “A Shifting Landscape: A Decade of Change in American Attitudes about Same-Sex Marriage and LGBT Issues.” PublicReligion.org. Public Religion Research Institute, 26 Feb. 2014. Web. 12 Nov. 2015.

Keller, Rudi. “Appeals Court Rules Missouri Law Denies Gays Protection from Harassment, Firing.” ColumbiaTribune.com. Columbia Daily Tribune, 28 Oct. 2015. Web. 3 Nov. 2015.

“Laws Enforced by EEOC.” EEOC.gov. US Equal Employment Opportunity Commission, n.d. Web. 5 Nov. 2015.

Melling, Louise. “The Equality Act Is a Visionary Piece of Legislation — and Way Overdue.” TheHuffingtonPost.com. The Huffington Post, 24 July 2015. Web. 9 Nov. 2015.

Pittman v. Cook Paper Recycling Corp. Missouri Court of Appeals Western District. 27 October 2015. PDF File.