In April, for the first time ever, a full panel of Circuit Court judges in the Seventh District in Illinois ruled that discrimination against employees due to sexual orientation was against Title VII of the Civil Rights Act of 1964, finding that discrimination based on orientation falls under discrimination based on sex. The opinion reversed a lower-court decision to throw out the case of an Indiana professor fired for being a lesbian, and set federal-level legal precedent that sex discrimination includes sexual orientation.
That ruling conflicted with an appellate court ruling in the 11th Circuit Court of Appeals a month earlier, where only a panel of three judges (not a full panel) found that Title VII does not protect against claims of discrimination based on sexual orientation. In that case, the court first found that the plaintiff, a masculine-presenting lesbian, did not have sufficient evidence to state a claim based on her gender presentation. The court then quickly dismissed the theory that a ban on sex discrimination, including sex stereotyping, necessarily encompasses sexual-orientation discrimination by citing circuit-court precedent from Blum v. Gulf Oil, which held, without analysis, that “discharge for homosexuality is not prohibited by Title VII.” Incidentally, the 1979 case also described sexual orientation as “sexual preference” [insert eye roll].
Given that there is now a split in the circuits, it is likely that this issue will go up to the Supreme Court, so the Trump administration’s Department of Justice is weighing in. The DOJ filed an amicus brief last week agreeing with the 11th Circuit Court that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation” and, in doing so, disagreed with the Equal Employment Opportunity Commission, the Seventh Circuit Court of Appeals and several past presidential administrations.
Since 2002, Title VII of the Civil Rights Act of 1964 has been interpreted by lower courts as inclusive of protections for LGBT people, holding that firing someone for being gay is discrimination. The presidential administrations between 2002 and now have held the position that sexual orientation is protected under sex discrimination, save one: the Trump administration. Attorney General Jeff Sessions has filed a multitude of amicus briefs arguing against preserving LGBT rights, including the case of the Colorado baker who was found guilty of violating the state’s Anti-Discrimination Act by refusing to bake cakes for same-sex weddings, despite having no such qualms making cakes for opposite-sex weddings. Moreover, this issue has implications well beyond employment law and the service industry, particularly in education. Title IX of the Education Amendments of 1972, a powerful weapon against discrimination, is generally interpreted in sync with rulings on the employment-discrimination law. Title VII was the crux that permitted the Obama administration to justify its efforts to enforce bathroom and locker-room equity for transgender students.
When those cases are considered together, the position that the Trump administration has taken against LGBT protections paints a disturbing picture for LGBT Americans. It is still entirely legal to fire someone based on sexual orientation in 28 states, including — you guessed it! — Pennsylvania. While marriage equality is the law in every state, a legally married same-sex couple attempting to add a spouse to their health-insurance benefits through their employer risks being fired. If a same-sex couple posts on social media about their life — wedding photos, vacations taken together, anniversaries or anything related to their relationship — in 28 states, they could return to work the next day to find they no longer have a job.
We spend 35 percent of our waking hours at work, where studies show that 80 percent of employees report having conversations about their social lives, home lives, relationships and dating at least weekly, if not daily. In an ideal world, where LGBT employees are not afraid to be their authentic selves, people who work together every day form bonds and discuss personal topics such as weekend plans, family events and even go out for cocktails together. For LGBT workers in unprotected states, the choice is to outright lie about how and with whom they spend their time, or remain silent. Studies show that this leads their colleagues to believe they’re hiding something, are untrustworthy or are distant and reluctant to forge any real depth to their working relationships. Moreover, closeted LGBT employees report higher rates of depression and demonstrate higher rates of absenteeism and lack of efficiency, which negatively affects their advancement opportunities.
Being scared and fearful of being out at work is further reinforced by our own president’s stance on LGBT issues — evidenced by Trump’s ban on transgender service members in the military, the beliefs of the people he’s hired and appointed and by his administration stating publicly that the Civil Rights Act of 1964 does not include sexual orientation in its protections. As a nation, we have made tremendous strides in the last decade with regard to LGBT equality, and this rollback of federal protections — even if they’re not laws as of yet, such as the EEOC definition of sex discrimination including sexual orientation — threatens the livelihoods of all LGBT Americans.
Cases like those brought by Donald Zarda and Kimberly Hively, who are suing their former employers for wrongful termination due to their orientation, or the anti-discrimination suit against Jack Philips, the Colorado cake baker, are vital to our LGBT-equality movement. But if our Department of Justice gives contradictory guidance to the EEOC and in direct defiance of past administrations, the lives and livelihoods of an entire demographic of Americans hang in the balance. With such political heavyweights as the attorney general, the Department of Justice and the solicitor general — who has chosen to defend the actions of the cake baker rather than condemn them — and even the president himself weighing in on the wrong side of history, legal experts working toward equality for all have no choice but to see these actions as a direct and willful attack on the LGBT community.
For those living in states or municipalities without employment-discrimination protections, so continues the corporate version of “Don’t Ask, Don’t Tell.”
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in New Jersey and Pennsylvania and specializes in LGBT law, family law, business law, real-estate law and civil rights. Her website is www.giampololaw.com, and she maintains a blog at www.phillygaylawyer.com. Reach out to Angela with your legal questions at 215-645-2415 or [email protected].