UPDATE on LGBTQ Rights in the Workplace
On June 15, 2020, the Supreme Court of the United States rendered a decision upholding the rights of LGBTQ employees in the workplace. In a 6-3 decision, the Court stated Title VII of the Civil Rights Act of 1964 applies to sexual orientation and gender identity and expression. Sexual orientation and gender identity are protected classes under federal law.
The law prohibits employers from making negative employment decisions based on an employee’s or job applicant’s sexual orientation or gender identity and expression. This federal decision applies to any workplace with 15 or more employees throughout the United States.
What is Title VII?
Signed into law by President Lyndon B. Johnson on July 2, 1964, the Civil Rights Act came on the heels of the assassination of beloved President John F. Kennedy. Amidst civil strife and racial tension, the United States stood at a crossroad, either be that shining light on a hill that President Thomas Jefferson promised or descend into the racially divided country that had ravaged the European continent for centuries. President Johnson carried on JFK’s legacy by signing the Civil Rights Act, which provided sweeping legal reform and prohibited discrimination in various areas of American life, most notably in housing and employment.
Among the EEOC’s first cases were those of female flight attendants seeking protections under the new Title VII law from the blatant sexual harassment and gender discrimination that these women faced on the daily. Original provisions of Title VII including sex discrimination as a protected category and thus employees who experienced sex discrimination were allowed to bring claims under Title VII. Many saw this as a joke. The running gag was “Title VII is going to require the Playboy Club to give men the equal opportunity to don puff tails and silk ears, and work as one of its scantily clad waitresses.” All jokes aside, that’s just what the law did.
Barbara Roads, the union leader for the flight attendants at the time, walked into the EEOC with another blonde stewardess and decided to file the first complaints with the EEOC. These women’s complaints were met with amusement. However, the women fought on and complained of the ban on marriage, age discrimination, and weight tests. The Airlines argued that businessmen would be discouraged to fly if the were forced to change their regulations, to which Martha Griffiths, one of only five female EEOC Directors famously stated, “What are you running, an airline or a whorehouse?” Through hard-fought legal battles, the Stewardess won their case, providing teeth not only to Title VII but to the newly established EEOC.
WHAT IS PROTECTED UNDER TITLE VII?
Title VII mirrors the language of the Civil Rights Act of 1964. Title VII protects employees from being discriminated against on the basis of their race, color, national origin, ethnicity, sex, gender, sexual orientation, religion, creed, age, disability or pregnancy. While many states and cities have similar laws to Title VII, Title VII only applies to employers with over 15 employees. Title VII also applies to labor unions, employment agencies, and both Federal and State Governments.
WHAT CAN YOU NOT DISCRIMINATE AGAINST?
An employer with over 15 employees cannot discriminate against an individual because of their race, color, national origin, ethnicity, sex, gender, sexual orientation, religion, creed, age, disability or pregnancy. Further, an employer cannot retaliate against an individual for participating in a protected activity. A protected activity includes making complaints of discrimination based on one of the above-protected classes.
Discrimination is difficult to define but generally means an individual is being treated differently (lesser) solely because they are a member of a protected class. For instance, if a company held a party and the boss gave everyone a red cup, however, they gave their Indian employee a blue cup with a hole in it, solely because she is Indian or a woman, then that would most likely be actionable discrimination under Title VII.
Much ink has been spilled over exactly what counts as actionable discrimination. In many cases, actions that may seem discriminatory on the surface may be pure coincidence, and an employer may have a legitimate non-discriminatory reason for an adverse employment action. Further, many employers create policies that do not appear discriminatory on the surface but become discriminatory on how they are applied.
The most common form of discrimination is an individual making discriminatory comments based on another individual being a member of a protected class. While all discrimination is equal, there are certain trigger words that almost automatically trigger Title VII protections. Racial slurs, for instance, are usually a sure-fire example of discriminatory conduct, with many Courts ruling that even one instance of the “N-word” is discriminatory.
WHAT IS THE SCOPE COVERAGE OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964?
Title VII is much larger in scope than typical discrimination. Under Title VII, sexual harassment is a form of discrimination. Sexual harassment in the workplace, pornography on a worksite, unwanted request for sex. This creates two basic forms of sexual harassment, quid pro quo, and hostile work environment. Quid Pro Quo sexual harassment is basically when an employer promises to give an employee certain employment benefits based on that employee performing sexual favors for that employer. Hostile work environment sexual harassment is basically an employer creating an environment that a reasonable person would feel the is hostile based on sex, which often comes in the form of sexual joking or repeated requests for sexual favors.
Title VII is broad, but not as far-reaching as most would hope. However, it does protect a wide range of activities, activities that most would not think of as particularly discriminatory or harassing. For instance, in the case of sexual harassment, because many individuals agree to perform sexual acts, they don’t feel as though their claim is actionable. This is a common misconception. If the only reason you performed the sexual act is because a co-worker or supervisor asked you to perform that act, even far away from the workplace, then you may have an actionable claim for workplace sexual harassment, and thus sex-based discrimination under Title VII.
HOW DO EQUAL EMPLOYMENT OPPORTUNITY LAWS PROTECT JOB APPLICANTS?
Title VII of the Civil Rights Act of 1964 not only covers individuals who already have a job, but also protects individuals in the hiring and recruiting process. Title VII further covers individuals in the application and interview process. Often interviewers will ask questions which are thinly veiled attempt to suss out information that may be damning to the applicant, such as revealing a pregnancy or sexual orientation. Make no mistake, Title VII covers employers who attempt to keep individuals out of their company because those individuals are members of a protected class.
The skilled New York City sexual harassment attorneys at the Derek Smith Law Group, PLLC, have years of experience litigating claims of discrimination under Title VII. Working together with our Philadelphia sexual harassment attorneys, we have recovered millions for our clients based on Title VII claims. If you feel you have been discriminated against based on your protected class, please give us a call at 877-469-5297, for your free consultation.