Title VII of the Civil Rights Act of 1964 has been arguably one of the most historic pieces of legislation to shape employment law in modern times. While it offers protection to employees on the basis of race, age, sex, religion, disability, and national origin, it does highly contested, controversial, and present subject in political and social progressive dialogues in recent years. The federal law has not seen much benefit from this activity, but activity has altered change on the state level. As the country faces transition regarding the topic of sexual orientation, employers are being forced to adopt policies that consider the larger scope of this changing issue. Sexual orientation’s potential status change could affect employers on various levels: from benefits, to discrimination and harassment policies, to training and legal issues. It is at the forefront of current employment law debates and has been gaining more traction as the laws continue to be interpreted in broader senses. FEDERAL ANTIDISCRIMINATION LAWS AND SEXUAL ORIENTATION
Before one can understand the modern scope of sexual orientation as viewed through the law, they must understand the evolvement of laws over the past few decades. In the late 1950s, the debate regarding sexual orientation gained traction in America due to a case involving Frank Kameny. Kameny was fired on the basis of being a gay man, and the Supreme Court rejected his request for a hearing. As a result, demonstrations in support of Kameny began to blossom across the country. In 1975, the Civil Service Commission reversed its policy against gays as a result, and hence a long struggle for equality began (Bauer & Kleiner, 2001).
In the interim, Title VII of the Civil Rights Act of 1964 (Title VII) was passed. As mentioned, it provided broad protection for several protected classes of citizens on the basis of discrimination. This was especially prevalent in employment law. However, a person could still be fired on the basis of sexual orientation, as Title VII on provided protection on the basis of sex (Bauer & Kleiner, 2001). For most of its existence, Courts held to the belief that discrimination on the basis of sex could only occur between opposite-sexes. However, in 1998 the Courts brought clarity to this. They states that same-sex sexual harassments cases can be a violation of Title VII if it constitutes discrimination because of sex and is “so severe and pervasive that it constitutes an objectively hostile work environment” (Sexual Orientation and Gender Identity Discrimination, 2012). The Court held: “If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of… sex’ merely because the plaintiff and the defendant are of the same sex” (Reeves & Decker, 2011)
Federal protection for gays, lesbians, bisexuals, and transgender is very limited. There have been several attempts to pass a bill providing an amendment for equal protection on the basis of sexual orientation for the purposes of employment discrimination within the Employment Non-discrimination Act, or ENDA. Many national and internationally renowned organizations have formally adopted its principles, and have gone above in beyond in creating cultures inclusive of sexual orientation as a protected class (Bauer & Kleiner, 2001). If the bill passes, it would prohibit employment discrimination on the basis of sexual orientation and gender identity nationwide. Any employer of more than fifteen employees is required to comply with the act. As proposed, ENDA would define ‘sexual orientation’ as meaning ‘homosexuality, heterosexuality, or bisexuality,’ and ‘gender identity’ as meaning ‘gender-related identity, appearance, or mannerisms or other gender related characteristics of an individual, with or without regard to the individual’s designated sex at birth.’ So, if the bill were to become law it would also protect against discrimination on the grounds of being transgender as well (Reeves & Decker, 2011).
While clearly little reform has taken place to protect sexual orientation within the private sector, it has been an issue that has been addressed for several years within the public sector. Executive Order 11,478 prohibited federal agencies from discriminating on the basis of sexual orientation, but it did not create new enforcement rights. Therefore a federal employee could not bring about a discrimination case to the Equal Employment Opportunity Commission. In 1998, Executive Order No. 13,087 barred federal agencies from discriminating against civilian employees on the basis of sexual orientation (Sexual Orientation and Gender Identity Discrimination, 2012).
Additionally, we have seen the evolution of the perception of gays in one of America’s largest employers: The United States Military. In 1997, the United States adopted the “Don’t Ask, Don’t Tell” policy to help protect the homosexual community in the military. It was questioned immediately, as there was the potential infringement on freedom of speech insinuated, among other concerns (Bauer & Kleiner, 2001). This reform was recently revoked, a perceived victory for the gay community. WORKPLACE DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
The biggest concern for those who are gay, lesbian, bisexual, or transgender (GLBT) is that they have no protection from discrimination or harassment in the workplace. Being that Title VII is strictly enforced solely on the basis of sex, claims of discrimination and harassment have seldom been successful. Some have been, when they have fit into a very narrow set of circumstances that helped them blend into discrimination based on sex verses sexual orientation (Reeves & Decker, 2011). So the question remains, what happens if these individuals are being discriminated against on the basis of sexual orientation? Is it absurd to think that someone may not be hired for a job they are otherwise qualified for due to them being gay? Why is sexual orientation not seen as a protected class? Those who oppose sexual orientation as a protected class would argue it is due in part to the fact that they believe sexual orientation is a choice, where as other protected classes are not choices – you cannot choose what color your skin is, what gender you are, or your national origin (Nussbaum, 2010). However, one could argue the same can be said about religion, that there is a freedom of choice involved with it; however it continues to remain a protected class.
While nearly half of the states and over on hundred and eighty municipalities have adopted sexual orientation protection laws, there is no federal protection for the GLBT community under antidiscrimination laws. There were two court cases filed against the Boy Scouts of America in the late 90s in two different states very similar in nature. They both concerned individuals who were denied Assistant Scoutmaster Positions because they were gay; however they both had different outcomes due to the antidiscrimination laws within their respective states. In Dale v. Boy Scouts of America, the New Jersey Court of Appeals ruled that the Boy Scouts was a public entity and under New Jersey law, it is illegal to discriminate on the basis of sexual orientation in any place of public accommodation (Dale verse Boy Scouts of America, 1999). In Curran v. Mount Daiblo Council of the Boy Scouts, the California court ruled that the Boy Scouts were not a business and so the California Unruh Civil Rights Act did not apply (Curran v. Mount Diablo Council of the Boy Scouts, 1998).
This element on inconsistency varying from state-to-state will have to be addressed eventually by the Supreme Court. The EEOC has accepted the same standard of protection as Title VII. As mentioned, there has been an increase in valid claims for same-sex sexual harassment that have a correlation to sexual orientation. It is difficult to prove that the harassment occurred on the basis of sex and not sexual orientation. Eventually, the United States Supreme Court will have to consider the position of the states in their adoption of sexual orientation as a protected class.
Due to the adherence of only recognizing “sex” as a protected class, there has been little traction seen in court cases concerning what would otherwise be seen as discrimination. Harassment in the workplace has taken on a similar role as discrimination. Harassment is typically viewed seriously, as it can lead to emotional distress for employees, which typically equates to lost time and productivity, and therefore revenue of employers. Under most circumstances, harassment victims have the ability to leverage the EEOC to file a complaint of harassment within the workplace; however harassment of a gay, lesbian, or bisexual is remain unprotected. Legal cases involved gay or lesbian victims were considered cases involving sexual orientation discrimination, which is not covered under Title VII. Therefore, there have not been any landmark court cases deciding what is sexual harassment when it involves sexual orientation (Bauer & Kleiner, 2001).
Oncale v. Sundowner Offshore Services is seen as a landmark case concerning same-sex sexual harassment. In this case, the Louisiana courts sided with Sundowner Offshore Services citing that Title VII only protected against harassment when the victim was of the opposite sex (Oncale v. Sundowner Offshore Services, 1998). In 1998, the U.S. Supreme Court overturned that ruling, and declared that the harasser and victim could be of the same sex (Bauer & Kleiner, 2001). Similar to the discrimination, harassment laws have also been adopted at the state level concerning same-sex harassment. A case in Tennessee validates this. In Yearly v. Goodwill Industries, a gay employee was sexually harassing another male employee (Yearly v. Goodwill Industries, 1997). The court decided this could be viewed as sexual harassment because the remarks were prompted by sexual attraction, similar to a male employee harassing a female employee due to sexual attraction.
Gender identity, or transgenderism, is seen differently than homosexuality. According to a 2008 study by the Human Rights Campaign, 176 of the Fortune 500 businesses have a gender-identity protection at this time (Reeves & Decker, 2011). Transgender individuals identify emotionally and psychologically as a different sex than they were born, often times they choose to lead lives of the gender they were not assigned to at birth. Federal courts have held that transgender individuals are not protected under Title VII. However, they have been afforded protection on the basis of gender stereotyping (Hunt, 1999). Although federal laws do not prohibit employment discrimination based on sexual orientation, there is “an evolving body of case law under Title VII of the Civil Rights Act of 1964 that extend the act’s prohibition of sex discrimination to include discrimination based on gender stereotypes, transsexualism, and gender identity (Sexual Orientation and Gender Identity Discrimination, 2012). Some states, as well as the District of Columbia, have passed laws protecting transgenders from discrimination. In 2011, the EEOC ruled that discrimination against a federal employee based on transgender status was allowed to pursue a claim for discrimination based on sex under Title VII (Sexual Orientation and Gender Identity Discrimination, 2012).
DOMESTIC PARTNERSHIPS AND SEXUAL ORIENTATION
Not only are gays, lesbians, bisexuals, and transgenders burdened with a lack of protection under antidiscrimination laws that affects their employment, they are also subject to a lack of benefits for their domestic partners. In the United States, gay marriage is not legal. Therefore, there are no federal laws mandating that employers recognize the union between same-sex couples. Same-sex couples do not reap the benefits of a domestic partnership, as traditional man-woman couples do. This has been an issue of national headlines as of late, due to same-sex marriage equality laws being passed in several states. Aside from states acknowledging same-sex marriage, many large companies have also extended health, insurance, and retirement benefits to same-sex partners as an employee benefit. The definition of a domestic partnership is continuing to evolve. Some define it as simply as two persons who live together in a committed relationship, whether they are allowed to marry or not.
Domestic Partner benefits can also vary from those of married employees in states where same-sex unions are not permitted. Several unions have also introduced domestic partner benefits into the collective bargaining agreements. They can do this on the grounds that it is an extension of the commitment to provide a workplace free from sexual orientation discrimination (Domestic Partner Benefits, 2007). Benefits are all encompassing; they do not end with the acquisition of medical or other insurance benefits. Domestic partners have consistently faced a battle of establishing a case to receive the same benefits as a married couple, inclusive of retirement benefits. The Pension Protection Act of 2006 has provided financial protection to domestic partners. The act allows Section 401(k), 403 (a) or (b), and eligible government plans under Section 457 (b) to offer the nonspouse beneficiary of a plan participant the option of rolling distributed benefits to an inherited individual retirement account (Domestic Partner Benefits, 2007). It also allows gay and lesbian couples access to laws that permit them to withdraw money from their retirement funds in the event of medical emergencies (Domestic Partner Benefits, 2007).
There are two major concerns employers have voices as a result of domestic partner benefits: cost and taxation. Employers have had a difficult time nailing down the cost of insuring a domestic partner verse the cost of the treatment that domestic partner may receive. Studies have shown that when the opportunity for domestic partners to enroll has been available, it has been substantially low – in the 2% range (Domestic Partner Benefits, 2007). While employers are usually not taxed on employer-provided coverage under group health plans, the Internal Revenue Service has stated that domestic partners cannot be considered spouses for tax purposes, so employers take on the additional burden there. In some cases, not providing domestic partner benefits could cause an employer a potential lawsuit. This was seen in states that have laws against discrimination based on sexual orientation (Nussbaum, 2010). One federal law that has been a guiding force in many domestic partnership decisions was the Defense of Marriage Act (DOMA), which defined marriage as strictly being between a man and a woman. In May, the United States Court of Appeals ruled that DOMA is unconstitutional. In light of this, the country is bound to see a more aggressive pursuit of marriage equality (Domestic Partners – Attorneys Highlight DOMA’s Effets on Pretax Treatment of Health Benefits, 2012).
EFFECTS ON THE WORKPLACE
Several questions have yet to be answered where sexual orientation is concerned. Employers are on their own when it comes to creating policies and procedures regarding harassment, discrimination, and benefits for those who are not heterosexual. Unless the employer is within a state that already acknowledged sexual orientation as a protected class, they have the freedom to make decisions to best suit their businesses. What is clear is that the role of sexual orientation within the workplace has yet to be permanently defined. This past decade has seen landmark reform that has leaned more liberally towards the GLBT community. So, what is an employer to do?
The employer always has the option to sit and wait, to wait for reform, to wait for change, and alter their policies in line with the law. However, this is not always what employees (or the employer) want and therefore it is not always in the best interest of the employer to comply with that sentiment. Several employers make proactive attempts to create workplaces inclusive of all individuals, to be ahead of the law and set a precedent for those to follow. Jaclyn Kugell states,
“Most companies want to make a statement that they are committed to protecting Employees from sexual orientation discrimination at work, even in states in which the law does not specifically include it as a protected characteristic. They don’t want a reputation as an unwelcoming place – that can have a negative impact on their business and hinder their ability to
attract and retain employees” (Hsieh, 2008).
Sexual orientation in the workplace begins with hiring process, in order to maintain inclusivity; the employer must not meet applicants with bias. The Employee Handbook is the employer’s key to protecting its employees. It typically outlines the employer’s discrimination and harassment policies. If the employer chooses to provide protection to employers based on sexual orientation, it must be clearly stated in the handbook and understood by employees (Maleske, 2009).
Employers who have already adopted sexual orientation as a protected class have also stated legal costs are another reason they have been proactive in adopting sexual orientation protection. By allowing there to already be a complaint mechanism for issues of discrimination and harassment, although it is not seen as a protected class, protects the company as long as they are consistent with it (Hsieh, 2008).
In addition to the monetary benefits to being ahead of the law regarding sexual orientation, employers have also begun to change their training programs to include sensitivity training, anti-harassment training, and trainings on how to interact with gay, lesbian, and transgender co-workers and clients (Hsieh, 2008). This investment in diversity training is new grounds for many organizations, but they are hoping it will be a preventative measure to help them in the future.
There are many freedoms that heterosexuals have and take for granted. Gays, lesbians, and bisexuals want to experience a similar lifestyle and be able to make the same commitments. Regardless of religious or political beliefs, a human remains a human. Although sexuality has traditionally been seen as a private matter, the scope of sexuality has become very public and controversial. Activism around this topic has been apparent for several decades. What the courts must determine is if this is in fact an issue of moral or equal rights. Changes in employment law that affect discrimination, harassment, and benefits for the GLBT community will not alter the way people view homosexuality, but it will grant them the same privileges awarded to every other American. Fairness and equality within the workplace should not be a question of debated; it should be a right that we all share. The evolution of the law will continue, both on state and federal levels. It would be good legal advice to suggest organizations and employers begin to develop proactive means of adopting policies inclusive of rights based on sexual orientation. A change to affirmative action policies has not been a key component of the agenda, just merely a protection of employee rights.
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