LGBT Sexual Orientation Discrimination
In the words of Joe Miller, played by recent Golden Globe winner Denzel Washington, “we’re standing here in Philadelphia, the city of brotherly love, the birthplace of freedom, where the founding fathers authored the Declaration of Independence, and I don’t recall that glorious document saying anything about all straight men are created equal. I believe it says all men are created equal.” This above statement is as true today as it was in the 1980’s. However, there is no historical document or law that can change societal attitudes until there is a uniform shift in the interpretation of the law, steered in the direction of equality which shifts the group-think attitude altogether.
“Philadelphia” depicted societies’ prejudices and fear toward the LGBT community and ashamedly in today’s society, less than a third of all states in our country have laws protecting people from discrimination based on sexual orientation, and only a minority prohibit discrimination based on a person’s gender identity which could fall anywhere on a large spectrum. Moreover, there is currently no federal law that provides protection for LGBT citizens. However, as recently as 2014, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII of the Civil Rights Act of 1964 as a law that provided protection for LGBT people. In other words, even though federal and state courts have not taken a uniformed position regarding the range of safeguard for LGBT people under existing sex discrimination law, the EEOC (an agency of the Federal government), permitted any LGBT person who experienced workplace discrimination on the basis of sexual orientation or gender identity to file a charge with any one of the EEOC’s offices within 300 days from the date of the discriminatory act.
Though courts are hesitant to opine that LGBT people are directly protected under Title VII, the Supreme Court has gone as far as stating that individuals can establish violations of Title VII if their employer discriminated against them because they were unwilling to conform to gender stereotypes and traditional notions of masculinity or femininity. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In fact, after the Price decision, a number of courts used the ruling of the Supreme Court and all applicable theories in order to afford additional protection for members of the LGBT community.
However, there is a major problem with the Supreme Court’s ruling and the extent to which protection is afforded to the LGBT community by the federal government. The problem is that most folks don’t define their orientation by masculinity or femininity alone. Arguably, the very reason most folks (a silent majority of the LGBT community) refuse to “come-out” is because of the universal attempt to label an individual and associate them with a subculture they are perhaps not a part of or have no desire to be associated with. Therefore, courts should not ask the question of whether an employer is discriminating against an employee because of a gender stereotype but rather, are employers discriminating against an employee because they identify as something different from that which the employer favors?
Luckily, states such as New York have made strides in the legislative arena both at the state and city levels, to afford protection to employees who are discriminated against on the basis of “actual or perceived” sexual orientation. Well before a federal agency or court would even touch the issue or orientation in the work place, New York pioneered the fight for equality with the Sexual Orientation Non-Discrimination Act (“SONDA) which was signed into law in 2002. The law gave protection to people who were targeted based on their sexual orientation and moreover gave them protection based on what the discriminator perceived as their orientation.
SONDA and other laws which followed suit in New York helped show that one’s orientation is something just as natural as other protected classes under Title VII such as race, color, and national origin. The sexual orientation lawyers of the Derek Smith Law Group, PLLC not only stands by SONDA and similar laws enacted within the City of New York, we actively fight on a daily basis to ensure that people who are discriminated against simply because of who they are find justice in a court of law. While prejudice may be alive and well, real change only comes when there are individuals willing to stand up for their rights. If you have been discriminated against in the workplace or elsewhere on the basis of your actual or perceived orientation, the sexual orientation lawyers of the Derek Smith Law Group, PLLC encourage you to give us a call. As courts have previously stated, employment lawyers often become private attorney generals, entrusted with the power to stand up for justice on behalf of those who are discriminated against. Martin Luther King believed that injustice anywhere was a threat to justice everywhere, and if you don’t speak up and stand up for your rights at some point…there may be no one left to stand up.