UPDATE (March 4, 2021) - The U.S. House of Representatives has passed the Equality Act, which would codify the Supreme Court's June 2020 decision and thus forever enshrine into federal law employment discrimination protections for LGBTQ Americans. President Joe Biden supports the legislation; it remains to be seen if the bill will survive in a U.S. Senate where 60 votes are still required to overcome filibusters that block legislation.
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.
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.
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.
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.
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.
The Employment Non-Discrimination Act (now referred to as the Equality Act) is a perennially introduced piece of
legislation that has made scant advances in various sessions of Congress.
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.
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.”
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.”
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.
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.
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 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.
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.
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.
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.
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.
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.
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, in Masterpiece Cakeshop, a case regarding a baker’s professed desire not to make a cake for a
gay couple, the U.S. Supreme Court punted on vital civil rights issues related to LGBT equality.
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 legislation.
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), today referred to as the Equality Act, 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.”
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.
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.
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.
ENDA did not advance to the President’s desk despite public opinion polling
that consistently indicated that a majority of Americans supported the bill.
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.
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.
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.
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.
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. However, recently, a Trump administration official indicated that if the modern-day EDNA, the Equality Act, made it to his desk, he would veto the legislation: a move consistent with his recent actions that undermine LGBT equality.
In terms of other vital national
political actors whose support for the Equality Act is necessary to pass this legislation, Democratic
Speaker of the House Nancy Pelosi is fervently in support of the legislation. In the newly Democratic-controlled House, the legislation recently sailed 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.
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. Today, McConnell has said he would not bring the Equality Act to a vote on the Senate floor. 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, 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.
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.
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. Another result of the circuit split though is that the Supreme Court has now granted a writ of certiorari on this issue and has agreed to rule on whether Title VII covers sexual orientation.
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 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.
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.” 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. 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. 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.
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. 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.’” 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. 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. 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.”
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.
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.
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.
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. 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.
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. 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.”
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. 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.”
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.”
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. 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.
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.” 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.
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. 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.
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. 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.
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. 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.”
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.
Further, his opinion in King v. Burwell provides
guidance regarding his thinking in situations similar to the one at hand.
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.
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.
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.
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. In
California, the Fair Employment and Housing Act applies similarly.
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. Given
the objectively historic lack of productivity 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.
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.
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.”
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.
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.
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.
This finding ideally ought to extend to the Civil Rights Act.
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.”
Rep. Celler, a floor manager of the Civil Rights Act, was a skeptic of the
“sex” amendment too as he spoke against its inclusion.
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.
