This article on, “Workplace Discrimination Laws” by Antariksh Anant focuses on the discrimination based on race, colour, religion, sex, sexual orientation, or national origin at the workplace constantly faced by the LGBTQ+ community and the legal framework for their protection in the United States.
Though the integration of LGBTQ+ people has risen on business agendas since the Civil Rights Act of 1964 (Title VII), when Congress prohibited employment discrimination based on race, colour, religion, sex, or national origin but their rights were not really protected by the act as the courts interpreted sex discrimination and sexual orientation discrimination differently.
Hence many LGBTQ+ employees continued to endure workplace harassment, inconvenience, and even danger. LGBTQ+ employees believe that in order to be recognized, they must outperform their non-LGBTQ+ colleagues. Company regulations can sometimes make life difficult for LGBTQ+ employees. They do not have access to restrooms at their workplace and were not referred by their preferred pronouns.
And, in particular, LGBTQ+ employees who work for a global corporation face significant legal barriers when it comes to immigration, as many countries still do not recognize LGBTQ+ relationships; this has an impact on their professional life when they are unable to relocate to another country to work for a global corporation. Clients, contractors, and other business partners may potentially discriminate against LGBTQ+ workers.
Employment Non-Discrimination Act
In the 110th United States Congress, there were two versions of the bill introduced, both of which offered employment protections comparable to Title VII of the Civil Rights Act of 1964. The first is H.R. 2005, which passed, afterward, H.R. 3685 was presented on September 27, 2007, and was passed by the House of Representatives on November 7, 2007, by a vote of 235 to 184, with 14 members abstaining.
In 2007 The Employment Non-Discrimination Act (ENDA) criminalized discrimination in the workplace based on sexual orientation or gender identity. The ENDA provided specific rights for lesbian, homosexual, bisexual, and transgender (LGBT) persons, comparable to those provided by existing federal anti-discrimination legislation for other protected groups of employees.
ENDA is a crucial form of policy that will assist millions of people and families in the United States secure jobs. Eliminating workplace discrimination towards LGBTQ+ would move closer to its principles of justice and equality by guaranteeing that people are hired based on their qualifications, not their sexual orientation or gender identity.
The ENDA applies to the same entities as Title VII of the Civil Rights Act of 1964. Private companies with 15 or more employees, labour unions, employment agencies, and federal, state, and municipal governments are examples. The Armed Forces, religious institutions, and companies with less than 15 workers are excluded from the Act.
Civil Rights Act 1964
Title VII of the Civil Rights Act of 1964 made employment discrimination on the basis of race, colour, religion, sex, or national origin is illegal. Now can an employer dismiss a worker only because he or she is homosexual or transgender?
An employer that dismisses a person because he or she is homosexual or transgender fires that person for qualities or acts that the employer would not have questioned in members of the opposite sex. Sex has an essential and undeniable part in the choice, which is expressly prohibited by Title VII.
However, this statute never protected the trans and queer communities from discrimination since businesses always counterclaimed that ‘sex’ refers to the biological understanding, i.e., male and female, and therefore this act does not safeguard the rights of LGBTQ+ people. The phrase has also been interpreted similarly by the courts.
Title VII provisions exempted certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the organization’s or school’s “activities,” U. S. C. 2000e–1(a); see also 2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, the exemptions are not applicable.
Later, transgender workers filed a Title VII lawsuit to challenge employer-provided health insurance plans that do not cover expensive sex reassignment surgery. Similar lawsuits have been filed under the Affordable Care Act (ACA), which forbids sex discrimination in healthcare delivery.
Inconsistency from State to State
In the 1979 case of Gay Law Students Assn. v. Pacific Tel. & Tel. Co., a California court ruled that gay men and lesbians are not discriminated against in the workplace. The court stated that any policy that penalizes gay people violates the California Labour Code, which prohibits employers from controlling or limiting their employees’ political activities.
The California Fair Employment and Housing Act was approved by the California legislature in 1992, banning sexual orientation discrimination in public and private employment. The Gender Non-discrimination Statute of 2003 modified the act once again, prohibiting California employers from discriminating on the basis of gender identity or expression.
The District of Columbia’s City Council modified the Human Rights Clarification Amendment Act of 2005 (D.C. Law 16-58), which outlawed discrimination based on sexual orientation, with D.C. Code 2-1401 in 2006. The terminology of the Human Rights Clarification Amendment Act was modified from “sexual orientation” to “sexual orientation, gender identity, or expression” within the categories protected from discrimination by this law.
Despite the fact that these states possess legislation that prohibits discrimination based on sexual orientation and gender identity, the provisions vary greatly from state to state. Some states defined sexual orientation and gender identity, while others did not. Some states passed laws quickly, while others took considerably longer. They were obviously not on the same page.
Workplace discrimination laws are uneven across the country because they differ from state to state and because municipal anti-discrimination regulations are frequently ignored. As a backdrop, there was a need to prohibit employment discrimination expressly and universally on the basis of sexual orientation and gender identity throughout the United States.
Sex Discrimination vs Sexual Orientation Discrimination
Employers are prohibited from discriminating on the basis of “race, colour, religion, sex, or national origin” under Title VII. 2000e–2(a) of the United States Code (1).
There were two approaches to interpreting the phrase “sex” under the Civil Rights Act. The first literalist view holds that sexual orientation discrimination inherently qualifies as sex discrimination, and so Title VII’s prohibition on sex discrimination likewise applies to sexual orientation discrimination. This was the approach taken by the courts.
According to the Second Approach, discrimination “because of sex” is not fairly regarded as representing discrimination based on sexual orientation. People are classified differently based on their sexual orientation than they are based on their gender. The two characteristics are categorically distinct and universally acknowledged as such.
Title VII did not ban other types of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination, when it was created in 1964. In 1964, “discrimination ‘on the basis of sex’ was not considered to include discrimination on the basis of sexual orientation or transgender status” (under civil rights act).
Six more Courts of Appeals addressed the question of sexual orientation discrimination after 1991, and until 2017, every single Court of Appeals ruling interpreted Title VII’s restriction on “discrimination because of sex” to include discrimination based on biological sex.
According to President Clinton’s 1998 Executive Order, the Executive Branch, like Congress, has long recognized sexual orientation discrimination as separate from, and not a component of, sex discrimination. The similar idea may be found in federal rules. The Office of Personnel Management (OPM) is the federal agency in charge of enforcing and administering personnel policies throughout the federal government.
OPM has published regulations that “govern… the employment practices of the Federal Government in general, as well as the employment practices of particular agencies.”. Those OPM regulations, like federal legislation and Presidential Executive Orders, separately ban sex discrimination and sexual orientation discrimination.
The same has happened in the States. A majority of states ban sexual orientation discrimination in the workplace, either by law that applies to most workers or through an executive order that applies to public employees, or both. Almost every state legislation or executive order against sexual orientation discrimination specifically forbids sexual orientation discrimination in addition to sex discrimination.
On June 15, 2020, the United States Supreme Court ruled in Bostock v. Clayton County that workplace discrimination based on gender identity or sexual orientation is unlawful. They ruled that the last ban of discrimination “on the basis of sex” entails discrimination on the basis of sexual orientation and extends to millions of homosexual and transgender workers.
Following that judgment, plaintiffs may allege that failing to use their chosen pronoun violates one of the federal anti-sex discrimination statutes. The judges were asked to interpret Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, religion, national origin, or gender.
The Court’s ruling may potentially have an impact on how businesses treat their employees, as well as how instructors and school authorities contact children. To refer to someone in the third person in English, two sets of sex-specific singular personal pronouns are employed (he, him, and his for males; she, her, and hers for females).
However, numerous sets of gender-neutral pronouns have since been developed and are chosen by certain people who do not identify with either of the two traditional categories. Some municipalities, such as New York City, already have regulations that make failing to use a person’s chosen pronoun a criminal violation.
Some universities have similar rules. While others are still continuing to think it is difficult to remember and address someone with gender neutral terms.
 Bostock v. Clayton County, 590 U.S. 140 S. Ct. 1731; 207 L. Ed. 2d 218; 2020 WL 3146686; 2020 U.S. LEXIS 3252