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Sunday, February 17, 2019

One of the most intense employment law debates happening in the courts: does Title VII of the Civil Rights Act apply to sexual orientation? A case for why it should and how advocates can succeed.


Image result for lbj signing civil rights act
The essay below is a slightly modified, updated version of an essay I submitted for Sexuality and the Law at  Villanova Law in April 2018. All the views expressed here are my own:
When the U.S. Supreme Court legalized same-sex marriage in its landmark 5-4 decision in June 2015, Justice Kennedy wrote that a new era of full recognition of the rights and liberties of LGBT individuals was upon us.[1] However, still today, between 11 to 28 percent of lesbian, gay, and bisexual Americans report that they were passed over for a promotion, or fired outright, for their sexual orientation.[2] Despite progress on marriage in the realm of gay rights, there still exists no explicit protection in federal law for gay, lesbian, and bisexual individuals who allege sexual orientation-based employment discrimination.[3] Although states have adopted their own remedies to address this gap, still, in 29 states, there is a risk of sexual orientation discrimination in employment because of the lack of statutory protection.[4]
Further, even though there has been success at the state legislative level in amassing a sizable number of states that provide this protection, there has been little to no federal legislative progress on this issue.[5] The Employment Non-Discrimination Act is a perennially introduced piece of legislation that has made scant advances in various sessions of Congress.[6] Even at the apex of the gay rights movement’s success in 2013, the legislation failed to even come up for a vote in the U.S. House of Representatives.[7]
However, a broad federal employment discrimination statute does protect Americans of all stripes through its sweeping, all-encompassing language. The Civil Rights Act of 1964 contains a vital employment-related provision, Title VII. This element of the landmark federal civil rights law prohibits employment discrimination “because of race, color, religion, sex, or national origin.”[8] Specifically, the law states “it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”[9] Within this statute, the term “sex” is the subject of a vast array of scholarly, constitutional, and political debate regarding the scope of its reach and the interpretation it ought to be afforded.[10] The mere fact that such robust and sharp disagreement exists regarding the application of Title VII is a reflection of the ambiguity of the law. This ambiguity has allowed widespread employment discrimination against LGBT individuals to occur.[11] Such identity-based discrimination, a function of antipathy untied to work ethic, should not be legal; these individuals should not be punished for practicing their constitutionally protected rights.
As such, either the U.S. Congress should pass legislation that specifically extends the reach of Title VII to protect gay employees or the U.S. Supreme Court should grant a writ of certiorari in a sexual orientation employment discrimination case and definitively hold that Title VII, as written, applies to sexual orientation. This paper will defend the aforementioned thesis by considering, first, congressional action to amend title VII; second, a Supreme Court ruling that broadly interprets Title VII based on the existing language of the statute and other canons of statutory interpretation; and third, failing either of these remedies, this paper will consider state-level legislative solutions. This paper will also consider counterarguments commonly raised against broad protection including, first, religious liberty concerns; second, the notion that Congress could not have intended Title VII to cover LGBT individuals; and third, the claim that broad Title VII protection will open the floodgates to frivolous litigation. This paper will discuss the limitations of these counterarguments as it broadly makes the case for why there are several political avenues that provide opportunities for resolution of this vital equal rights issue.
I.              Title VII should be amended through congressional action.
This section of the paper will address the substantive policy reasons of why Congress should affirmatively extend Title VII to cover LGBT individuals and how that can manifest itself in passage of the Employment Non-Discrimination Act (ENDA). The paper will later address the political prospects of ENDA’s passage. Employment discrimination against LGBT individuals should be eliminated for several reasons. For one, it is irrational as it is not related to employment performance. Second, individuals could be fired for exercising their constitutional expression of the fundamental right to marry. Third, there is clarity necessary for both employers and employees. Fourth, persistent discrimination is deleterious to economic growth and stifles productivity while discouraging some LGBT individuals from joining the workforce. Fifth, an undermining of LGBT rights, through rigid interpretation of Title VII, could pave way for further undermining of civil rights. Finally, the full recognition of social equality is incomplete though without crucial protections in the workplace, a pillar of American life for millions. The freedom to shape one’s own “destiny” and chart the course of their own life includes the ability to work freely without fear of unequal treatment.
Such fear risks paralyzing LGBT individuals as they face an uncertain professional landscape where employers sometimes screen applicants for their sexual orientation.[12] Though employers may claim that a firing, for instance, of an LGBT person has nothing to do with their sexual orientation, it is often unmistakably animus-driven.[13] The economic effect of this discrimination is also unquestionably harmful as LGBT workers may feel discouraged from employment and thus unable to exercise their professional skills. On the other hand, scholarship and extensive research, principally on the part of the Williams Institute of the UCLA School of Law, demonstrate that employers who openly encourage LGBT employees to embrace their identities have lower levels of worker turnover and more worker productivity as opposed to employers who do not adopt such LGBT-friendly policies.[14]
Importantly too, the psychological effect of the inability of LGBT individuals to be open about their sexual orientation at work can be devastating. This harm is magnified by the fact that, in American life particularly, individuals often define themselves by their job as it is a strong part of one’s sense of dignity. For 25 years, Gallup has consistently found that a majority of Americans find that they get a “sense of identity” from their work.[15] Further, there is even a material well-being that arises from a job as, for millions, a job is associated with various benefits that include health insurance, retirement security, and the right to collectively bargain, among other key benefits of employment. As such, safety and security in one’s employment is a principal part of American life. Consequently, given the centrality of work in American culture, the harm of being closeted one’s job is compounded. Already, 35 percent of LGBT employees feel as if they need to hide their identities at work while 30 percent say they feel “distracted,” a clear sign of how discrimination has tangibly harmful effects.[16] Further, it is well-documented in psychological research that being closeted and having to constantly live in fear of the revelation of one’s sexual orientation can mean unhealthier and more depressed lives, which translates to less rigorous work performance[17]. Beyond these vital reasons to end employment discrimination, there is a real risk that in this tumultuous political era, a curtailing of LGBT rights in the employment realm could lead to an erosion of civil rights in other areas. Already, there is a possibility that LGBT rights could suffer a blow at the Supreme Court in the Masterpiece Cakeshop case, a case regarding a baker’s professed desire not to make a cake for a gay couple.[18] For all of these reasons, Congress must intervene to end employment discrimination against LGBT individuals.
a. The case for Congress amending Title VII through passage of ENDA.
At its core, the debate over Title VII is a debate over the law’s statutory interpretation, not a constitutional dispute. In order to avoid wasting the time and resources of a hamstrung federal judiciary, the U.S. Congress could easily resolve this debate by drafting a law to specifically protect sexual orientation. That is exactly the goal of the Employment Non-Discrimination Act (ENDA), legislation which explicitly “prohibits [employers from] …engaging in employment discrimination on the basis of an individual's actual or perceived sexual orientation or gender identity.”[19] In November 2013, ENDA, with the strong support of President Obama, passed the then-Democratic-controlled Senate by a large, bipartisan majority of 64-32, even with the support of some socially conservative Republican Senators like Patrick J. Toomey of Pennsylvania.[20]
However, the legislation was ultimately stopped dead in its tracks in the Republican-controlled House, where then-Speaker John Boehner decried the prospect of “frivolous litigation” that could arise should the bill become law.[21] Boehner’s opposition to the bill ensured its failure in Congress as the Speaker controls what legislation comes to the floor of the House; though Congressman Jared Polis, a Colorado Democrat, circulated a so-called “discharge petition” to force a majority of U.S. House members to sign on to a measure that would compel a floor vote, this effort also failed.[22] ENDA did not advance to the President’s desk despite public opinion polling that consistently indicated that a majority of Americans supported the bill.[23] In fact, most Americans wrongly believed employment discrimination against LGBT individuals was already prohibited by existing law, a myth that Speaker Boehner echoed and perpetuated.[24]



b. Political prospects of passage of ENDA in the current environment
Nevertheless, that the bill recently passed the Senate, earned modest Republican support, and has the support of a majority of U.S. voters, according to a plethora of public opinion polling, all should compel advocates to examine refocusing on the passage of this legislation. President Donald Trump did not take a public position on ENDA during his 2016 campaign nor has he addressed the legislation as president. His administration though is stacked with stalwart opponents of LGBT rights and the administration’s Justice Department amicus briefs argue that Title VII does not apply to sexual orientation. Notably, Trump’s vice president is Mike Pence, who signed into law Indiana’s controversial state-level Religious Freedom Restoration Act in 2015.[25]
 In the employment context specifically, Trump has nominated individuals to the Equal Employment Opportunity Commission (EEOC) who are noncommittal on workplace protections and he rescinded an Obama-era executive order that sought to hold federal contractors accountable for violations of federal civil rights laws.[26] On the other hand, Trump has, at times, publicly flirted with support for gay rights as he famously vowed to protect LGBT individuals as president in his 2016 Republican National Convention nomination acceptance speech.[27] Well before his successful presidential run too, Trump even went so far as to tell The Advocate in 2000 that he supported ENDA-like legislation.[28] Therefore, though it is unlikely that President Trump would support ENDA, given his administration’s record on LGBT rights so far, it is a position that would not be inconsistent with some of his previous statements.
In terms of other vital national political actors whose support for ENDA is necessary to pass this legislation, Democratic Speaker of the House Nancy Pelosi is fervently pro-ENDA.[29] Given the Democratic majority in the House, the legislation would likely sail through the chamber. However, in the GOP-controlled Senate, Mitch McConnell controls legislation that comes to the floor and he voted against ENDA when it passed the Senate in 2013.[30] McConnell has considered conditional support of ENDA yet his vote against the legislation came even after exemptions were tucked into the bill to protect religious organizations – exceptions that were sufficient to earn the support of several of McConnell’s fellow Senate Republicans. The last kind of action on this legislation at all though was in 2014 and given the lack of prioritization of LGBT rights on the part of the Trump White House and the GOP Senate, the prospects of congressional passage appear dim at the moment. Should Democrats take keep control of the House, take back control of the Senate and take back the presidency, there is a stronger chance of passage of ENDA, given the Democratic Party’s embrace of the legislation and of LGBT rights more broadly.
The importance of political legislative action on this issue at the federal level is paramount. Ultimately, an act of Congress, to modify Title VII, would have the effect of ending the statutory construction debate on this issue. The only action that could undo Congress’ act, after a presidential signature of approval, would be Congress overturning the act in the future. That is because the issue at hand on Title VII is not a constitutional one; the Supreme Court ultimately would rule, should they rule on this issue, on the interpretation of the statute – not on whether it is constitutional as written, a debate settled long ago in the aftermath of the law’s passage in 1964. A congressional act here would be the most durable solution to the problem that LGBT employees face because it would codify these protections into federal statutory law. In fact, Congress is a key actor here because they even would have the authority to overturn a Supreme Court decision that rules liberally in favor of a broad Title VII interpretation. Though Congress might be loath to take such action in a political environment in which support for gay rights has rapidly expanded in the last decade, it is a risk for advocates as they prioritize pursuing federal judicial progress for now. On the other hand, if the Court were to rule that Title VII does not apply to sexual orientation, the most surefire and most efficient manner of reversing such a holding would be for Congress to reverse the Court and rewrite the statute so that it does apply to sexual orientation, an outcome far speedier than years-long litigation to begin again the battle to convince the Court that it does apply. Public acceptance on this issue would be strengthened too if political actors came together to pass legislation because ultimately elected representatives in Congress answer more to U.S. voters, and are accountable to them, whereas unelected justices who sit on the Supreme Court are unfamiliar to millions of Americans and far more removed from voters’ lives.
However, the Republican Senate leadership is currently seemingly uninterested in advancing this legislation. Not only have several Republican members of Congress made derogatory comments regarding LGBT Americans but also even less outlandish GOP members of Congress have echoed concerns that are akin to former Speaker Boehner’s warning about excessive litigation. In light of this lack of prioritization of LGBT rights on the part of the GOP Senate, political action at the federal level to amend Title VII seems wholly unlikely at the moment. Therefore, advocates have been focusing their energy, resources, and time to making the case within the federal judiciary. Already, in the last several years, the Second Circuit and the Seventh Circuit, both in en banc decisions in which the full court issued opinions, have ruled in favor of a broad interpretation of Title VII to cover sexual orientation in Zarda v. Altitude Express and Hively v. Ivy Tech Community College of Indiana, respectively.[31] On the other hand, in the Eleventh Circuit, in the case of Evans v. Georgia Regional Hospital, the court there ruled that Title VII does not apply to sexual orientation in a controversial opinion that the Supreme Court recently chose not to review.[32] This 2-1 circuit split has an important implication in that, in the regions in which those circuit opinions are controlling, sexual orientation discrimination is now, of course, considerably more difficult to defend as employers will hit a roadblock if such discrimination is challenged in federal courts.
II. The Supreme Court should affirm the broad interpretation of Title VII in Zarda and Hively.
This section of the paper will address why the Supreme Court should affirm a broad interpretation of Title VII. The Supreme Court is even likelier to interview now in the aftermath of Zarda v. Altitude Express to resolve this issue. The Court could ground its analysis in the plain meaning of the statute, as Zarda did, in the legislative history of the Civil Rights Act, which includes progressive statements from key drafters of the law, and in the longstanding judicial principle of deference to federal agencies’ interpretations of vague laws.[33]
a.     Plain language
Should the Court dissect the plain language of the law to find for protection, the Zarda court provides strong guidance. The Second Circuit there analyzed that “sexual orientation discrimination is motivated at least in part, by sex, and is thus a subset of sex discrimination.”[34] The Zarda court even relied upon the Black’s Law Dictionary definition of sexual orientation to rule that sexual orientation is inextricably linked to sex as an individual’s sex is inherently relevant to the establishment of that individual’s sexual orientation.[35] The intertwining of these two concepts, notions that are “functions” of one another, permitted the court to find, consequently, that Title VII applies to sexual orientation given that “sex” is a “protected characteristic” under the statute.[36] The Zarda court was clear in its opinion that there is a “sex-dependent nature” to sexual orientation – a kind of clear linkage that is compelling and concise in such a way that it could appeal to the aforementioned conservative justices on the Supreme Court.[37]
The plain meaning argument, rooted in a core canon of statutory interpretation that the Court has long embraced, is similar to one advanced in the Seventh Circuit in Hively.[38] The Hively court was even more straightforward and blunter in its approach as it found, in an opinion that also extended Title VII to sexual orientation, that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”[39] The court’s finding of a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex” was integral to its analysis, which included examination of an associational theory of discrimination based on Loving v. Virginia, among other factors.[40] The plain language-based argument though is often made in conjunction with the argument that the larger context of the statute is relevant to an analysis of its protection. Indeed, such a context-based claim would only strengthen the grounds on which LGBT plaintiffs would stand in employment discrimination cases. Title VII makes few exceptions in its broad and sweeping prohibition on employment discrimination of all stripes. The only exceptions it does make relate to religious organizations, members of the Communist Party, and seniority-based systems, among other exemptions.[41] An important canon of statutory interpretation is rooted in the idea that if Congress wanted to draw distinctions and make further exceptions, it could have done so but it chose not to do so here. Put simply by the Zarda court, “the statutory prohibition extends to all discrimination ‘because of . . . sex’ and sexual orientation discrimination is an actionable subset of sex discrimination.”[42]
b.     Legislative intent
Another crucial element that courts have relied upon and advocates ought to prioritize is the utilization of the notions of legislative intent and congressional purpose as part of a strong case for Title VII protection. It is true that it is wholly improbable that the Congress of 1964 and President Lyndon B. Johnson anticipated that the Civil Rights Act would ever extend to sexual orientation or that any of the federal circuit cases aforementioned would have advanced. In fact, the driving force behind the law was the activism of Rev. Dr. Martin Luther King, Jr., the advocacy of the National Association for the Advancement of Colored People (NAACP), and the organizing of African-American civil rights activists and protestors of all walks of life to definitively prohibit state-sanctioned, race-based segregation in all public facilities and services. There is even a prevalent suggestion among some scholars that the inclusion of “sex” in Title VII was meant to be a “poison pill” to defeat the legislation and that was the intended effect of the members of Congress who introduced such language.[43]
 At the same time, an extensive 2014 article in The New Yorker, coming on the heels of the 50th anniversary of the law and a simultaneous cultural renaissance regarding President Johnson’s legacy, disputed such claims as it detailed how feminist legal minds and activists of the era, including advocates at the National Organization for Women (NOW), not only believed the language was crucial for prohibiting sex-based discrimination but also utilized it subsequently as part of an effort to root out sex-based stereotyping in employment practices in the 1960s and 1970s.[44] The Supreme Court would go on to find such stereotyping-based discrimination illegal under Title VII in the landmark Price Waterhouse v. Hopkins decision, a seminal holding that the Hively and Zarda courts relied on to find that anti-LGBT discrimination was linked to antiquated stereotypes regarding men and women’s roles and relationships in society.[45]
This history is relevant to the extent that it reveals that the word “sex,” though not expressly articulated by members of Congress to include sexual orientation, was not necessarily added as a means of defeating the purpose of Title VII. It was not treated as a “poison pill” by advocates at the time, and the Supreme Court itself recognized that such discrimination was intended to be covered not just in a strict, straightforward fashion (i.e. “I am firing you because you are a woman”) but in a way that also could extend to more complex situations that involve stereotyping.[46] As such, the Court has already relied upon context, legislative intent, and a broad reading of the statute to find that Title VII could be applicable to situations beyond a strict scenario that Congress could have imagined – something the Court did not only in Pricewaterhouse but also in sexual harassment-related cases.[47]
The Hively court, in reaching its expansive holding, relied upon a similarly sweeping opinion that the Supreme Court issued in Oncale v. Sundowner Offshore Servs., Inc.[48] In that case, the Court found that “sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but crucially, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[49]
Therefore, given such a recognition of a broad statutory interpretation of Title VII already, if the Supreme Court has already established that this law ought to be read expansively, advocates and LGBT plaintiffs would be wise to cite to these two aforementioned, major Supreme Court cases. It is even possible that Chief Justice Roberts would be sympathetic to such arguments given his professed embrace of the concept of “stare decisis” in his fall 2005 Senate confirmation hearings.[50] Even though Associate Justice Neil Gorsuch recently ruled against LGBT individuals in Pavan, it is possible Gorsuch would be sympathetic as well given that his mentor, the late Justice Scalia, even wrote favorably regarding such liberal interpretations of civil rights laws when he wrote for the majority in Pennsylvania Department of Corrections v. Yeskey that the fact that Congress did not “expressly anticipate” the application of a statute in specific contexts is not a reflection of the limitations of that law but rather a demonstration of its “breadth.”[51]
Even so, plaintiffs and advocates could look to the actual legislative history from 1964 to find evidence in favor of a strong congressional intent for the law to apply in situations that were not foreseen at the time of the debate. For one, the history of the law’s passage makes clear that “Senate liberals were overwhelmingly in favor of making workplace sex discrimination illegal – and so were some conservatives.”[52] The level of support was such that the Johnson White House ultimately supported the inclusion of this language after a concerted effort from some congressional progressives to emphasize its necessity.[53] Further, in his famous speech calling for passage of the bill, Republican Senator Everett Dirksen, who became an unlikely ally of the Johnson administration, declared that “times change” and “America changes” as justification for the Civil Rights Act, a recognition that there could be unforeseen developments that would trigger broad protections.[54]
Dirksen also rather firmly and sweepingly stated that “the time has come for equality of opportunity in sharing in government, in education, and in employment [and] it will not be stayed or denied.”[55] Senator Hubert H. Humphrey, another leading crafter of the legislation before he became LBJ’s Vice President, similarly stated that the “purpose” of the law was meant to protect against all forms of discrimination, rather than to provide any limitations.[56] Similarly, Rep. Emmanuel Celler, another leading architect of the legislation, stated on the floor of the House that the Civil Rights Act “bestows no preferences on any one group” and instead reaffirms that the “living force of our Constitution shall apply to all people,” sweeping language that reaffirms the wide breadth of the law.[57] The inclusion of “sex” was itself the subject of a debate on the House floor at the time which led to a vote specifically on its inclusion as it passed ultimately by 168-133.[58]
c.     Agency deference
Nonetheless, courts such as the Hively court have warned against “malleable” and often “indiscernible” legislative history in reaching an opinion. Hively, 853 F.3d at 343. As such, a potentially stronger footing could be agency deference. Although the Trump administration, through the Department of Justice (DOJ), has filed amici briefs against inclusion of sexual orientation in Title VII, and it has seen at least one victory in the Eleventh Circuit, the actual federal agency charged with carrying out the Civil Rights Act has a different reading of the law. In Title VII, the Equal Employment Opportunity Commission (EEOC) is tasked with the power to implement the statute to the extent that they are entrusted with enforcement of the provisions that prohibit employment discrimination. In fact, the EEOC was actually created by the Civil Rights Act itself.
Ever since 2015, the EEOC has taken the position that Title VII does extend to workplace discrimination against LGBT individuals; every member of the commission who ruled in this way was appointed to the EEOC by then-President Barack Obama.[59] Given the EEOC’s role in enforcing Title VII, the Supreme Court could find that since the Court previously ruled in Chevron that federal agencies should be given “deference” to their interpretation of the law, in cases where it is ambiguous as it is here, unless it is “arbitrary,” in laws where the relevant agency is charged by statute with enforcement, this kind of “Chevron deference” ought to compel a finding in favor of Title VII protection.[60] However, this is an unusual path for the Court to embrace given that it is unlikely that the conservative majority would embrace such a finding. It is also the case that the Zarda court avoided ruling on these grounds, a refusal to intervene in the unusual federal governmental split between the EEOC and the DOJ, and it was likely wise to do so if it wishes for its opinion to be upheld by the Supreme Court and to have longstanding effect.[61] Indeed, as Shalyn L. Caulley wisely noted in the University of Illinois Law Review, “while the EEOC has ruled that Title VII encompasses sexual-orientation and gender identity discrimination, ‘[t]he next president could appoint commission members who feel differently about the meaning of Title VII, and they could reverse th[e] divided opinion.”[62] Given the slate of nominees President Trump has put forward for the EEOC thus far, Caulley’s warning from 2017 seems prescient.
d.     The Supreme Court’s path to Title VII protection.
By far the strongest case, of those laid out here, that could be made for protection would be the plain meaning argument that relies on the actual language of the status, Such an argument could provide the basis for a wide majority ruling in favor of Title VII protections. Even a conservative justice like Chief Justice John Roberts could potentially be sympathetic to such an argument. More of a strict constructionist than his liberal colleagues but less of a rabid right-wing ideologue than fellow conservative justices Clarence Thomas and Samuel Alito, Roberts has shown a willingness very recently to follow through with protection for LGBT citizens, as seen in the Pavan ruling where he ruled in favor of recognition of same-sex couples’ rights with regard to a birth certificates matter.[63] Further, his opinion in King v. Burwell provides guidance regarding his thinking in situations similar to the one at hand.[64] In that case, Justices Roberts and Kennedy, who also would be sympathetic to a plain language-based argument given his approach in King, joined their liberal colleagues in holding that the Patient Protection and Affordable Care Act’s ambiguous definition of “state” ultimately did not preclude federally-run health insurance exchanges from featuring federally funded financial assistance for individuals and families.[65] In consideration of the plain meaning of the statute and the larger context of the law, one meant to expand health insurance for millions, Roberts’ opinion upheld the subsidies.[66] Roberts wrote that the word “state” could have a broad meaning that extends to federally-run entities within a state and Congress’ intent was surely not to “destroy” insurance markets but rather to “strengthen” them.[67] Roberts and Kennedy could take a similar path here and join the Court’s liberals through utilization of the plain meaning of Title VII and the broader context of the law’s aims to find for broad protection.
III. State-based protections for Title VII are a potential option for relief but provide limited recourse.
Lastly, another crucial avenue that plaintiffs and advocates could pursue is action within state legislatures to see to it that change is enacted. So far, this effort has had some success, most notably in states known for more progressive laws on such social and cultural issues. For instance, New York is home to the Sexual Orientation Non-Discrimination Act, a law passed in 2003 and one that explicitly bans sexual orientation discrimination in employment.[68] In California, the Fair Employment and Housing Act applies similarly.[69] Over 20 states have such protections but a majority of U.S. states do not have such laws on the books; thus there is an opportunity for LGBT individuals to advocate for such protections.[70] Given the objectively historic unproductivity of the Congresses that have been in session since 2011, state legislatures, heralded as laboratories of democracy, are a potentially viable option for efforts to secure stronger employment protection. On the one hand, legislation at the state level could set a model for Congress to act, in the same way that state legislatures passing versions of children’s health insurance programs ultimately provided strong examples for what a federal law could look like – and eventually led to the passage of the State Children’s Health Insurance Program in 1997. On the other hand, as the aforementioned Shalyn Caulley noted, there is a dilemma in that there is an inherent lack of “uniformity” when it comes to state legislatures taking this approach because, ultimately, LGBT individuals would be hamstrung if they wanted or needed to move to a state where there did not exist such protections.[71]


IV. Counterarguments
This section of the paper addresses counterarguments that opponents of Title VII protection for LGBT individuals would raise regarding the inclusion of protection. These include: first, that religious liberty concerns provide them with a shield to utilize against claims of discrimination; second, that Congress could not have intended for Title VII to apply to sexual orientation and so it should not be read that way; and third, that an expansive reading could lead to “frivolous litigation,” to use the language of Speaker Boehner.
a.     Religious liberty
The religious liberty argument is one that is rooted in the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment to the U.S. Constitution. This kind of argument was advanced unsuccessfully recently in the Sixth Circuit case of EEOC v. R.G. & G.R. Harris Funeral Homes.[72] The Harris case was far more straightforward in its details than other cases courts have dealt with in the Title VII as the employer here made quite clear that the firing of a transgender woman occurred because she failed to “follow God’s commands.”[73] The employer claimed that RFRA, passed overwhelmingly by Congress and subsequently signed into law by then-President Bill Clinton in 1993, protected his right to fire the employee because of the employer’s religious lack of desire to associate with transgender individuals. Akin to concerns raised in the Masterpiece Cakeshop case, the employer here is relying on language in RFRA that states that an individual’s religious practice cannot be “substantially burdened” by statutory protections and prohibitions.[74]
However, the Sixth Circuit issued an opinion that should provide guidance for the Supreme Court on how to rule on this issue. Indeed, the Harris court found that there is an overriding “compelling interest” in protecting individuals from the kind of employment discrimination “because of sex” that Title VII prohibits.[75] In reaching this finding, the court used an analysis similar to the one Justice Scalia advanced in the Supreme Court’s decision of Employment Division v. Smith in which the Court found that “neutral laws of general applicability” cannot be summarily overruled by religious concerns.[76] This finding ideally ought to extend to the Civil Rights Act, should Smith not be overruled by a forthcoming opinion in Masterpiece.[77]
b.    Legislative intent
That Congress could not have intended Title VII to apply to LGBT individuals is another argument that could be utilized by opponents. In fact, though Senator Humphrey extolled the virtues of a broad-ranging purpose for the Civil Rights Act, as Vice President, he wrote in a letter once in 1965 that the law had nothing to do with “the concerns of homosexuals.”[78] Rep. Celler, a floor manager of the Civil Rights Act, was a skeptic of the “sex” amendment too as he spoke against its inclusion.[79] If chief architects of the law found that Title VII is inapplicable to situations involving gay individuals, or that it should not even be there at all, then surely it should not apply to employment discrimination against LGBT individuals, opponents of protection would argue. Similarly, there would be a case made regarding the inclusion of “sex” as a means of defeating the legislation at the time of its debate. These counterarguments would be likely the most compelling of those opponents of Title VII protection would make. Nevertheless, they would still be countered by the notion that Congress need not explicitly envision a specific or particular application of a law in order for it to be protective in that certain way ultimately.
c.     Litigation
Lastly, Speaker Boehner’s claim regarding “frivolous litigation” is rooted in no serious evidence whatsoever. So far, already, because of the vague nature of Title VII, there has been extensive litigation over its meaning. It is entirely possible that a definitive Supreme Court ruling or an act of Congress finding that Title VII applies to sexual orientation could actually lessen litigation as it would put employers on notice to be careful in avoiding such discrimination. Indeed, that is a primary purpose as to why this issue is so vital for LGBT individuals. So far, for far too long, though they are constitutionally able to practice their right to love and marry the person they love, they are still living in the shadows in the sense that they are unable to fully express themselves given the fear that this lack of protection could create about revealing one’s identity in the workplace. As such, there should be either an act of Congress, ideally, or a Supreme Court ruling finding that Title VII applies to sexual orientation.








[1] Obergefell v. Hodges, 576 U.S. ___ (2015).
[2] Sarah McBride, Laura E. Durso, Hannah Hussey, Sharita Gruberg, and Bishop Gene Robinson, “Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections,” Center for American Progress,
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] 42 U.S.C. Section 2000(e).
[9] Id.
[10] Tessa M. Register, The Case for Deferring to the EEOC’s Interpretations in Macy and Foxx to Classify LGBT Discrimination as Sex Discrimination Under Title VII, 102 Iowa L. Rev. 1397 (2017).
[11] Id.; Brad Sears, Christy Mallory, Ilan Meyer, Report Shows Continuing High Levels of Workplace Discrimination, Impacts Productivity and Health, The Williams Institute at UCLA School of Law. (July 26, 2011).
[12] Christy Mallory and Brad Sears, Employment Discrimination Based on Sexual Orientation and Gender Identity in Alabama, The Williams Institute at UCLA School of Law, February 2017.
[13] Zarda v. Altitude Express, 883 F.3d 100, 108-109 (2nd Cir. 2018) (discussing how “the client told her boyfriend about Zarda's alleged behavior and reference to his sexual orientation; the boyfriend in turn told Zarda's boss, who fired shortly Zarda thereafter…[but Zarda] denied inappropriately touching the client and insisted he was fired solely because of his reference to his sexual orientation.”)
[14] M.V. Lee Badgett, Laura E. Durso, Angeliki Kastanis & Christy Mallory, The Business Impact of LGBT-Supportive Workplace Policies, The Williams Institute at UCLA School of Law, May 2013.
[15] Rebecca Riffkin, In U.S., 55% of Workers Get Sense of Identity From Their Job, Gallup. (August 22, 2014).
[16] Zack Ford, “Why the Workplace Needs to Be More Welcoming for LGBT Employees,” ThinkProgress, https://thinkprogress.org/report-why-the-workplace-needs-to-be-more-welcoming-for-lgbt-employees-4e55e6491996/. (May 9, 2014).
[17] Juster RP, Smith NG, Ouellet E, Sindi S, Lupien SJ, “Sexual orientation and disclosure in relation to psychiatric symptoms, diurnal cortisol, and allostatic load.” Psychosom Med. 2013 Feb; 75(2):103-16. doi: 10.1097/PSY.0b013e3182826881. Epub 2013 Jan 29.
[18] Paul Smith, “Indignity: A Supreme Court ruling in favor of Masterpiece Cakeshop would be devastating for gay Americans,” Slate, https://slate.com/human-interest/2018/04/a-supreme-court-ruling-for-masterpiece-cakeshop-would-devastate-gay-americans.html. (April 9, 2018).
[19] Congress.gov, S. 815 - The Employment Non-Discrimination Act of 2013, https://www.congress.gov/bill/113th-congress/senate-bill/815. (April 25, 2013).
[20] Mother Jones, These Senate Republicans Voted to Continue LGBT Employment Discrimination, November 2013, https://www.motherjones.com/politics/2013/11/senate-republicans-lgbt-discrimination-employment-transgender-gay/.
[21] Steve Benen, “Why Boehner Sees ENDA As Unnecessary,” MSNBC, http://www.msnbc.com/rachel-maddow-show/why-boehner-sees-enda-unnecessary. (November 14, 2013).
[22] Office of Congressman Jared Polis, “Polis Introduces Discharge Petition to Force Vote on ENDA,” https://polis.house.gov/news/documentsingle.aspx?DocumentID=393888. (September 17, 2014).
[23] Maggie Haberman, “Poll: Anti-discrimination law support,” Politico, https://www.politico.com/story/2013/09/poll-big-support-for-anti-discrimination-law-097540. (September 30, 2013).
[24] Benen.
[25] Emma Green, “Trump’s Battle Over LGBT Discrimination Is Just Beginning,” The Atlantic (July 28, 2017).
[26] Aine Cain, “Trump's nominees cast doubt on the future of employment protections for LGBT workers.”
[27] Donald J. Trump, Remarks Accepting the Republican Nomination for the Presidency of the United States, Republican National Convention, July 21, 2016.
[29] Office of Congresswoman Nancy Pelosi, Pelosi Remarks at Press Conference Introducing the Equality Act of 2015, https://pelosi.house.gov/news/press-releases/pelosi-remarks-at-press-conference-introducing-the-equality-act-of-2015. (July 23, 2015).
[30] Burges Everett, “Senate passes gay rights bill,” Politico, https://www.politico.com/story/2013/11/enda-vote-senate-099538. (November 7, 2013).
[31] Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir. 2018); Hively v. Ivy Tech Community College of Indiana, 853 F.3d 939 (7th Cir. 2017).
[32] Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017).
[33]Chevron v. U.S.A., Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837. (1984).
[34] Zarda, 883 F.3d 100 (2nd Cir. 2018).
[35] Id.
[36] Id.
[37] Id.
[38] United States v. Missouri Pac. RPR. Co., 278 U.S. 269, 278 (1929) (where the Court stated “where the language of an enactment is clear and construction according to its terms does not lead to absurd or impractical consequences, the words employed are to be taken as the final expression of the meaning intended”); Hively, 853 F.3d 339 (7th Cir. 2017).
[39] Id.
[40] Id.; Loving vVirginia, 388 U.S. 1 (1967). 
[41] 42 U.S.C. § 2000e.
[42] Zarda, 883 F.3d at 112.
[43] Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L. 137 (1997).
[44] Louis Menand, “The Sex Amendment: How women got in on the Civil Rights Act,” The New Yorker (July 21, 2014 issue).
[45] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
[46] Id.
[47] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
[48] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).
[49] Id.
[50] S. HRG. 109–158: CONFIRMATION HEARING ON THE NOMINATION OF JOHN G. ROBERTS, JR. TO BE CHIEF JUSTICE OF THE UNITED STATES HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION SEPTEMBER 12–15, 2005.
[51] Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 211 (1998).
[52] Statutes, Regulations, and Interpretation: Legislation and Administration in the Republic of Statutes, William N. Exkridge, Jr., Abbe R. Gluck, Victoria F. Nourse (2014).
[53] Id.; 110 CONG. REC. 2579-80 (1964).
[54] Everett M. Dirksen THE CIVIL RIGHTS BILL 1 June 10, 1964 (In the Senate).
[55] Eskridge, pages 33-41.
[56] Id.
[57]Id., 41.
[58] 110 CONG. REC. 2584 (1964); Bird, 158 (1997).
[59] Chris Geidner, “Sexual Orientation Discrimination Barred By Existing Law, Federal Commission Rules,” BuzzFeed News,  https://www.buzzfeed.com/chrisgeidner/sexual-orientation-discrimination-is-barred-by-existing-law?utm_term=.jfE2LKRmr#.mxG3rPeGV. (July 16, 2015).
[60] Chevron., 467 U.S. 837.
[61] Zarda, 883 F.3d 100.
[62] Shalyn L. Caulley, The Next Frontier to LGBT Equality: Securing Workplace-Discrimination Protections, 2017 U. Ill. L. Rev. 909 (2017).
[63] Pavan v. Smith, 137 S. Ct. 2075 (June 26, 2017).
[64] King576 U.S. ___ (2015).
[65] Id.
[66] Id.
[67] Id.
[68] Attorney General Eric Schneiderman, https://ag.ny.gov/civil-rights/sonda-brochure.
[69] Employees and job applicants are protected from bias, State of California, https://www.dfeh.ca.gov/employment/.
[70] We the People, “Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections,”
By Sarah McBride, Laura E. Durso, Hannah Hussey, Sharita Gruberg, and Bishop Gene Robinson Posted on December 10, 2014, 12:01 am, https://www.americanprogress.org/issues/lgbt/reports/2014/12/10/102804/we-the-people/.
[71] Shalyn L. Caulley, The Next Frontier to LGBT Equality: Securing Workplace-Discrimination Protections, 2017 U. Ill. L. Rev. 909 (2017).

[72] EEOC v. R.G. & G.R. Harris Funeral Homes, 2018 WL 1177669.
[73] Id.
[74] Id.; Mullins v. Masterpiece Cakeshop, Inc. (Colo. Ct. App. 2015), cert. granted, June 26, 2017.
[75] Harris, 2018 WL 1177669.
[76] Smith, 494 U.S. 872, 879 (1990).
[77] Id.
[78] Jonathan Capehart, “LBJ’s civil rights legacy and its importance to LGBT Americans,” The Washington Post, https://www.washingtonpost.com/blogs/post-partisan/wp/2014/04/10/lbjs-civil-rights-legacy-and-its-importance-to-lgbt-americans/?utm_term=.4e2c362b88e2. (April 10, 2014).
[79] 110 Cong. Rec. 2577 (1964); Bird, 153.