THE RAINBOW FLAG SIGNIFIES GAY PRIDE - EARLIEST ITERATION 1977
THIS SIX STRIPE VERSION CREATED IN 1979 AND ENDURES
Discrimination against a person because of his/her "sex" is illegal. In fact, that was a principal component of the Civil Rights Act of 1964 (Title VII) which, from an employee rights perspective, was primarily intended to facilitate and protect the rights of blacks and women as they entered into the American workforce in increasing numbers.
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| The Civil Rights Act of 1964 LGBTQ+-Related Protection Not Contemplated! |
Among the issues addressed herein are those relating to the reach of Title VII where discrimination based upon a variety of "sex-related characteristics" is concerned.
Definitions of Sex-Related Identifiers Used to Describe Members or Characteristics of LGBT Community
Here are some commonly employed definitions to inform your thinking:
Bi-Sexual Pride Flag Established in 2010
"Bi-Sexual" - A person that is sexually attracted to persons of either sex. Traditionally, a bi-sexual person identified themselves as male or female based upon their biological composition (i.e. a male identifies as a male, a female as a female).
Philadelphia's LGBTQ+ Pride Flag - 8 Stripes, the Black and Brown at the Top Signifying Support for Black and Brown Communities - Est. June 2017
"LGBT and LGBTQ+" - LGBT is the acronym for members of society who identify as "Lesbian, Gay, Bisexual and/or Transgender." The Q in LGBTQ+ frequently stands for "Questioning (people who are unsure of sexual identity and/or preference), although some designate it to stand for "Queer." The plus sign is generally understood to refer to the concept of "love, acceptance and the embracing of all."
Pansexual Symbol - Est. in or Around 2010
"Pansexual" - not limited in sexual choice where biological sex is concerned. Pansexuals often refer to themselves as gender blind, emphasizing that a person's sex or gender identity is not material to them where sexual attraction is concerned.
Same Sex Marriages are Becoming More Accepted - and Legal!
"Same Sex Marriage" - Marriage between two people of the same sex. A hotbed of controversy, legislation and legal decisions.
"Sexual Preference" or "Sexual Orientation" - refers to one's sexual preference or attraction to members of the same sex. Common Euphemism: Gay, lesbian, homosexual.
"Sexual Identity" or "Gender Identity" - refers to one's self identification as male or female, irrespective of one's physical attributes or genitalia.
Transgender Symbol
"Transgender" - refers to persons who identify themselves as belonging to the sex that is the opposite of their Biological Sex. Common Euphemism: Transsexual.
It's a Big Country, With a Tapestry of Local, State and Federal Laws and Ordinances
How Does the Federal Government Make it Illegal to Discriminate at Work in the United States?
Next, it is helpful to understand how Federal laws are made in the United States. There are 2 ways that our federal government can make it illegal to discriminate against workers:
1) The United States Congress can pass a law making discrimination illegal, such as it did when it enacted the Civil Rights Act of 1964; or,
2) The United States Supreme Court can issue a decision declaring discrimination illegal.
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Otherwise, the most persuasive authority in the United State's federal government is the Equal Employment Opportunity Commission ("EEOC"); however, while EEOC's rules, regulations and decisions are viewed as highly persuasive by the federal judiciary, they do not constitute the law of the land.
Next, it is helpful to understand how Federal laws are made in the United States. There are 2 ways that our federal government can make it illegal to discriminate against workers:
1) The United States Congress can pass a law making discrimination illegal, such as it did when it enacted the Civil Rights Act of 1964; or,
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| A Powerful Source of Law |
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Otherwise, the most persuasive authority in the United State's federal government is the Equal Employment Opportunity Commission ("EEOC"); however, while EEOC's rules, regulations and decisions are viewed as highly persuasive by the federal judiciary, they do not constitute the law of the land.
NOTE: A good deal, but not all, of the source material for the LGBT symbols was courtesy of Wiki.
HERE
ARE SOME OTHER ARTICLES YOU MAY FIND WORTHWHILE:
What is an ILLEGAL Hostile Work Environment?
Workplace Bullying Alone is Not Illegal in Pennsylvania
Employee Complaints and Retaliation - What is
Legal and What is Illegal
FILING A CHARGE OF DISCRIMINATION IN
PENNSYLVANIA - A FEW TIPS FROM CONTINGENT FEE LAWYERS
Can States, Cities and Local Governments Make Discrimination Illegal?
Yes, they can, provided that they do not enact laws that provide less rights than any federal law covering the same general subject matter.
Indeed, there are a wide variety of state laws that protect the rights of workers who are part of the LGBT community, and further is found in city, county and local ordinances throughout the country.
Indeed, Philadelphia's Fair Practices Ordinance is one of the strongest anti-discrimination in the workplace laws in the United States, making it illegal for employers within the city limits to discriminate against an employee because of his/her sexual preference, gender identity, marital status or familial status.
Is is Illegal Under Title VII or Any Other Federal Law to Discriminate Against a Worker Because He or She is Gay?
Over the past twenty-years or so, the hot-button issues where LGBT-rights are concerned begins and ends with the issue of whether Title VII prohibits discrimination in the workplace based upon the employee's sexually orientation/preference.
In other words, is it legal to discriminate against an employee because he/she is gay?
Due to the failure of the United States Congress or Supreme Court to pass a law or issue a ruling making such discrimination illegal, the matter remains open for discussion even today, although it seems clear that such discrimination will inevitably be deemed illegal.
That said, the Supreme Court has issued a number of decisions that support the LGBT community, and the EEOC recently issued a decision squarely stating its position that discrimination based upon one's sexual orientation violates Title VII, at least in its view!
Below is an overview of various legal decisions and EEOC rulings discussing LGBT-related rights to be be free from discrimination at work.
Does the Civil Rights Act of 1964 (Title VII) Make it Unlawful to Discriminate Based Upon Sexual Stereotyping? Is it Illegal to Refuse to Hire, or to Demote, Fail to Promote or Terminate an Employee Because of His/Her Sexual Preference or Sexual Orientation (Gay, Lesbian, Homosexual)?
In its landmark 1989 decision, Price Waterhouse v. Hopkins,the Supreme Court considered a case wherein a woman was denied a promotion to partner of the firm because she was perceived by some of her colleagues as being "macho," and "overcompensat[ing] for being a woman." One partner indicated that the plaintiff's chances of becoming a partner would increase if she would "walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry."
In suing for sexual discrimination, the plaintiff presented a unique issue, because she was not claiming that she was denied an opportunity to advance because she was a woman but, rather, because she did not fit her colleagues' stereotype of what a woman "should be."
The Supreme Court held that she stated a claim for discrimination based upon sex, noting:
In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. ...we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.
[I]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.
However, that has not proved to be the case.
Hostile Work Environment Claims - Does Title VII Protect the Victim if the Harasser is of the Same Sex and the Abuse and Bullying is Because the Employee is Seen/Viewed/Perceived to be Gay or a Homosexual or a Lesbian?
It took nearly a decade for the Supreme Court to issue a decision that further advanced the rights of members of the LGBT community.
In Oncale v. Sundowner Offshore Services, Inc., a 1997 decision by the United States Supreme Court, the male plaintiff was subjected to vile and humiliating statements and actions by his male co-workers, including physical assault and a threat of rape, who perceived the plaintiff to be a homosexual. Plaintiff complained to management, which did little to remediate the situation. He thereafter quit and filed suit. After the federal district court in Louisiana and 5th Circuit Court of Appeals court rejected his claim on the grounds that Title VII does not protect a worker for harassment from co-workers of the same sex, the Supreme Court took the case.
The Court held that plaintiff was entitled to protection under Title VII, analogizing the claim to one filed by a woman for a hostile work environment by male co-workers. In doing so, however, the Court made clear that the plaintiff's claim was based upon sex discrimination, as opposed to discrimination based upon sexual preference (i.e. homosexuality).
Despite its limited reach, Oncale was highly noteworthy because it was authored by Justice Antonin Scalia - who was revered for his intellect, and universally viewed as staunchly conservative.
Moreover, and perhaps even more remarkably, a concurring opinion was issued by the similarly conservative Justice Clarence Thomas, who once upon a time had himself been accused of creating a hostile work environment.
Surely, an arithmetic advancement of the rights of gay workers across the country was coming swiftly. .
Is Discrimination Based Upon Sexual Orientation or Sexual Preference Illegal Under Title VII?In Oncale v. Sundowner Offshore Services, Inc., a 1997 decision by the United States Supreme Court, the male plaintiff was subjected to vile and humiliating statements and actions by his male co-workers, including physical assault and a threat of rape, who perceived the plaintiff to be a homosexual. Plaintiff complained to management, which did little to remediate the situation. He thereafter quit and filed suit. After the federal district court in Louisiana and 5th Circuit Court of Appeals court rejected his claim on the grounds that Title VII does not protect a worker for harassment from co-workers of the same sex, the Supreme Court took the case.
The Court held that plaintiff was entitled to protection under Title VII, analogizing the claim to one filed by a woman for a hostile work environment by male co-workers. In doing so, however, the Court made clear that the plaintiff's claim was based upon sex discrimination, as opposed to discrimination based upon sexual preference (i.e. homosexuality).
Despite its limited reach, Oncale was highly noteworthy because it was authored by Justice Antonin Scalia - who was revered for his intellect, and universally viewed as staunchly conservative.
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| Noted Conservatives Unite on Behalf of LGBT Community?! |
Moreover, and perhaps even more remarkably, a concurring opinion was issued by the similarly conservative Justice Clarence Thomas, who once upon a time had himself been accused of creating a hostile work environment.
Surely, an arithmetic advancement of the rights of gay workers across the country was coming swiftly. .
Twenty-seven years after Hopkins, and 19-years after Oncale, the Supreme Court has yet to decide whether Title VII makes it illegal to discriminate against workers on the basis of their sexual preference or sexual orientation.
Hence, plaintiffs filing suit for discrimination based upon sexual orientation under Title VII are forced to state claims of discrimination based upon the "stereotyping"rubric announced in Hopkins.
Further, while there have been numerous efforts over the years to enact federal legislation making discrimination based upon sexual orientation unlawful, the most recent being the Equality Act of 2015, no such law has been passed as of this date.
The EEOC Decided in July 2015 That Discrimination Based Upon an Employees Sexual Preference or Sexual Orientation is Prohibited Under Title VII
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Persuasive, but Not Final Authority
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Thereafter, the Commission squarely held that, in its view, discrimination based upon sexual orientation was unlawful under Title VII:
We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. 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.
OVERVIEW: What Are the Leading Cases From the U.S. Supreme Court and Federal Circuit Courts on LGBT-Related Discrimination?
The EEOC has put together a fairly comprehensive list of such cases. Click Here to jump to that list.
On March 1, 2016, EEOC published a Fact Sheet entitled Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination. This provides an excellent overview of pending or recently decided matters, and the issues considered therein.
Click Here to read the EEOC's "What You Should Know" publication, which addresses the laws governing discrimination based upon sexual preference.
The EEOC Has Determined That Discrimination Based Upon Sexual Identity (Transgender Discrimination) Violates Title VII
In Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the EEOC held that discrimination against a transgender individual because that person's gender identity constitutes unlawful discrimination based on sex and is therefore violative of Title VII.
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