Immediately following the landmark Supreme Court ruling striking down same-sex marriage bans throughout the nation, many of my friends and the most prominent of gay rights groups began discussing the next battle for gaining full equality in the country. The focus immediately turned to employment discrimination and was prominently featured in articles by large publications throughout the country. I’ve heard it many times before: Federal law does not currently prohibit employers from discriminating against people on the basis of sexual orientation and that you can be fired for being gay in 29 states. But is this entirely true?
Not if you ask the Equal Employment Opportunity Commission (EEOC).
The EEOC, the governmental agency charged with enforcing current federal statutes protecting individuals against discrimination in employment based on race, religion, sex, etc. has successfully argued in court on more than one occasion that LGBT are already protected in the entire country under Title VII of the Civil Rights Act of 1964. According to the agency, discrimination against LGBT individuals is based on sex-stereotypes, such as an employer’s belief that men should only date women or that women should only marry men, and constitutes discrimination on the basis of sex under current statutes.
This determination did not come from the EEOC in and of itself; it is based on Supreme Court precedent. In Price Waterhouse v. Hopkins, the Supreme Court ruled in 1989 that individuals can establish violations of Title VII if an employer discriminates against someone due to stereotypical notions of masculinity or femininity.
So it’s all settled then, right? It is already illegal to fire someone in the entire country for being LGBT under the protections of the current Civil Rights Act of 1964 and Supreme Court precedent.
The simple answer is “yes.” The more sincere answer is “sort of,” hence the push for the Employee Non-Discrimination Act (ENDA).
The EEOC’s correct interpretation of the Supreme Court’s 1989 ruling to protect LGBT individuals under current law in prohibiting sex discrimination has not been fully tested in court. While the EEOC has been successful is defending LGBT individuals against employers in discrimination cases in court (see Macy v. Department of Justice, 2012, or Veretto v. U.S. Postal Service, 2011), the argument fell short for certain judges (see Muhammad v. Caterpillar Inc., 2014), meaning this interpretation is not fully implemented across the board, leaving LGBT individuals vulnerable and at the hands of certain judges’ visions of the law.
So what should the gay movement’s focus be? While passing ENDA would be a great step forward, is there not a better approach available?
The best method may be seeking a final interpretation of the Civil Rights Act of 1964 by the U.S. Supreme Court. Considering this current court has a majority of justices who believe that gay individuals are protected under the Equal Protection Clause, it would be highly unlikely that they wouldn’t extend full access to the law in areas of hiring and employment discrimination. Such precedent would guarantee that all, not just some, judges protect LGBT individuals under the Civil Rights Act and its prohibitions of sex discrimination.
You may ask yourself, why is this more attractive than ENDA? First of all, it is already widely reported that the only form of ENDA that could pass Congress would be a version including broad religious exemptions. If that version of the bill passed, that would leave many LGBT individuals vulnerable to the whims of a religious majority. Isn’t most LGBT-based discrimination inflicted in the name of religion? If exemptions protected not just individuals but also businesses that happened to be owned by religious individuals, LGBT individuals would remain unprotected under the law in many cases.
The Civil Rights Act does not provide religious exemptions, which is why it is preferable to ENDA. While the Act allows for religious organizations to prefer members of their own faith in hiring, it does not however, provide these organizations with a blank check to discriminate for any reason they want, including on the basis of sex.
Finally, broadly announcing that LGBT individuals may be legally fired in 29 states is doing a disservice to the community. This further enables employers to fire LGBT individuals based on the false idea that they will suffer no repercussions and that they acted lawfully. If gay rights groups were to widely proclaim that gays and transgendered people are already protected under current statutes and were to encourage individuals who have been discriminated against to file claims through the EEOC, it would be possible to prevent a great deal of discrimination from happening in the first place.
Groups such as the ACLU and Lambda Legal should focus their efforts on expanding interpretations of existing law via the court, based on recent court decisions in favor of gay rights and protections.
----Update 5:13PM EST----
A federal judge has just issued a ruling that concurs with this article in relation to housing. Judge Acker, Alabama, has ruled that LGBT may bring complaints in areas of the law where "sex" discrimination is prohibited, even if "sexual orientation" isn't explicitly protected.
http://www.dailykos.com/...
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