'LGBTQIA + Discrimination' in Employment Discrimination Law & Litigation

Abstract

This Chapter in Employment Discrimination Law & Litigation provides guidance in asserting and defending the employment rights of lesbian, gay, bisexual, transgender, queer, intersex, and asexual or agender people (LGBTQIA+). Increasing awareness and acceptance of LGBTQIA+ individuals in U.S. society, does not mean that society has not always been sexually diverse, or that sex has only recently been recognized as socially, rather than “biologically” defined. The Supreme Court’s recognition that the Due Process and Equal Protection Clauses must protect the right of same-sex couples to marry in Obergefell v. Hodges reflected on the continuing prejudices in “law and social convention” that have prevented equality and dignity from reaching everyone. Obergefell aspired to look beyond prejudice in its opening line: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Title VII surpasses constitutional doctrine in recognizing whether an impermissible trait — whether because of sex, or also race, color, religion, or national origin — played a motiving role, or factor, in workplace misconduct. Yet constitutional theories provide a baseline of rights, as in the traditional theory of sex stereotyping, which relies on both expression or perceptions of our sex and gender. Accordingly, notions about sex drive employer’s or coworkers’ desire to impose conformity. The Court observed, “[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.” Workplace law has evolved through Congressional amendment and judicial interpretation, and where gaps have appeared through narrow views, the federal executive and local governments have served as models.

The law has been slower than medical and social sciences in acknowledging that “sex,” rather than an immutable binary of female or male, is comprised of several characteristics including: genetic or chromosomal sex, gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex/gender of rearing, and gender identity (i.e., self-identified sex). Reflecting understanding and greater visibility of sexual and gender diversity, governments acknowledge in their administrative laws with respect to access to updating one’s sex marker or inclusion of non-binary sex markers.

Despite a dramatic increase in public acceptance of LGBTQIA+ individuals in recent decades, during the administration of President Trump, public tolerance for accepting LGBTQIA+ individuals declined. Because there is no comprehensive federal protection against sexual orientation discrimination, and because LGBTQIA+ people face significant hostility and misunderstanding from a variety of social forces, lawyers pursuing for equal treatment for their LGBTQIA+ clients must innovate and educate as well as advocate. Not only does discrimination in the workplace harm individual workers, it stigmatizes LGBTQIA+ people as a group.

Fortunately, although many battles remain to be fought, there are several trends in favor of civil rights for, and equal treatment of, LGBTQIA+ people, such as the right to marry embraced by the U.S. Supreme Court. Most important is the shattering of the silence about the reality and diversity of the lives of LGBTQIA+ people. As more and more people become aware of the LGBTQIA+ community, neighbors, family members, friends, and professionals, withholding basic civil rights protections in employment becomes increasingly untenable.

Keywords: Employment Law, Civil Rights, Constitutional Law, Gender, Sexuality, LGBTQIA+, Intersectionality, Jurisprudence

JEL Classification: J7, J71, K31