Yesterday, the Equal Employment Opportunity Commission, in its mission to interpret and enforce the employment anti-discrimination provisions of the Civil Rights Act, concluded the process of bringing LGBT workers within its purview. One of the steps in that ‘evolution’ has a local twist.
Law can be messy, and never more so than when it is struggling with contemporary cultural realities that suggest it has become out-of-touch with current circumstances in the country. At that point, judges and other decision-makers will get creative, and attempt to shoehorn new claim-feet into older, possibly ill-fitting legal shoes.
So it is with the employment discrimination rules under Title VII of the Civil Rights Act, and LGBT employee claims. The Civil Rights Act was passed in 1964, at a time when most gay individuals were securely closeted – such was the virulence of discrimination visited upon those few who were ‘out.’ The Stonewall riots, considered a seminal event of the gay rights movement, were still five years in the future. There was little organized demand for inclusion of LGBT characteristics in the Act’s coverage (note that ‘sex’ discrimination was only included by amendment, sponsored by a southern Congressman seeking to make the bill unpalatable – even to benighted yankees. Oops, and yikes).
Early cases where gay employees attempted to bootstrap LGBT status into the Act’s coverage via the ‘sex’ classification were rebuffed (Pacific Telesis Co. was the defendant in one such action). Judges seeking to keep faith with Congress’ intentions in passing the law saw neither language nor other indication that gay or transgender interests in workplace fairness were to be protected.
Many states and local governments have since passed laws protecting LGBT employees from job discrimination (CA among them). But it remains true that in some places you can get same-sex married on Saturday afternoon, and fired for it on Monday morning. ENDA, the Employment Non-Discrimination Act, is a hardy perennial bill to establish a national rule. It came close to passage in 2009, but does not yet stand much of a chance in a divided federal government.
Recently, however, the EEOC has found inroads on those earlier holdings, on the bases of two Supreme Court precedents (Hopkins v. PriceWaterhouse and Oncale v. Sundowner, for scorekeepers) – dealing with gender stereotyping and same-sex harassment, respectively. The agency has ruled that discrimination against transgender or gay employees is ‘actionable’ under Title VII in two cases brought before it.
In the first, an Arizona police officer applied for a crime lab job with the ATF in Walnut Creek, presenting as a man. After two interviews, the claimant was told the job was ‘his,’ pending a routine background check. The individual later notified the ATF of the gender conversion, and was soon told that the job had been cut for budget reasons. The ATF thereafter hired another individual for the job.
The EEOC concluded that Congress’ intent may extend beyond the immediate problem addressed in legislation (ironically, quoting the departed strict-constructionist Justice Scalia in the Oncale case), and that ‘sex’ includes not only biology (the plumbing) but cultural ‘gender’ expectations, as identified in the Hopkins precedent. The ATF’s actions suggested a bias against those who do not conform to traditional gender stereotypes and expectations.
The EEOC also relied on a clever analogy to religious discrimination in employment under Title VII: “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.' No court would take seriously the notion that 'converts' are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.”
In the other EEOC case, a gay FAA employee in Miami claimed he was denied a promotion because of his sexual orientation. The EEOC ruled that “an employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”
The federal government was the defendant in each of those cases, and appears to have chosen not to appeal the EEOC’s rulings. Federal courts give ‘deference’ to the Commission’s actions, but are not bound to adopt its interpretations (and sometimes the judges rule that the EEOC is wrong on the law).
Yesterday, the EEOC enforcement troops took the further step of suing two private companies on behalf of gay and lesbian employees who claim they were sexually harassed because of their sexual orientation (harassment is a specialized form of discrimination). Thus, the courts will now get a crack at the EEOC’s interpretation in these test cases.
Harking back to the recent blog on Justice Scalia, the judicial liberal/conservative contrast will be on display here. Conservatives can find ample bases to justify the exclusion of LGBT claims – they are not mentioned in the Act, and ENDA has not passed. Liberals will point to the fact that the coverage of “race” in the Act goes far beyond any biologic markers, as well as that homosexuality is a continuing basis for unjust discrimination, and easily subsumed under the general heading “sex.”
We may also see some attempts by Congress to rein-in the EEOC, based on budget cuts or direct orders to abandon this line of reasoning. It seems likely that such maneuvers would be vetoed, after they have had the desired election year effects all around.
Did I mention that law can be messy?