Did you know?: In the U.S.A., revealing your sexual orientation and gender identity to your employer could get you fired. Being fired from work, not because you rummaged an important piece of work but because you chose to embrace your identity contradicting the beliefs of several conservatives makes me contemplate whether this is what the 21st century had been visualized as. The aforementioned had been witnessed in the United States of America for several years. While workers in about half the country were protected by local laws that prohibit discrimination based on sexual orientation or gender identity, there was no federal law that explicitly barred LGBTQ+ workers from being fired on that basis. Isn’t it paradoxical that the human race has progressed in each and every field known to humanity over the past years and still, these draconian-era laws and beliefs justify the means for discriminating against the LGBTQ+ Community?
The discrimination against the LGBTQ+ workers in the U.S.A. had been justified by using a legal loophole. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of race, colour, national origin, religion, and sex. However, Title VII failed to address discrimination against employees based on gender identity and sexual orientation and hence, many employers used this loophole as a means to harass and discriminate against the Queer Community at their workplaces. To put it in perspective, if an employee came out as being gay to his employer in the morning, by afternoon he would lose his job. And as a consequence, most of the employees had resorted to hiding their sexual orientation and gender identity, thus, being forced to live in pretence.
Explaining with the help of statistics, a national survey conducted by the Centre for American Progress (CAP) concluded that 1 in 4 LGBTQ adults experienced discrimination and 52.8 percent of LGBTQ adults reported that discrimination negatively affected their work environment. Furthermore, 1 in 5 LGBTQ people reported being discriminated against when applying for jobs because of their sexual orientation or gender identity, according to a survey from NPR and the Harvard T.H. Chan School of Public Health. Transgender workers report unemployment at twice the rate of the population as a whole (14% vs. 7% at the time the workers were surveyed). 4 in 10 transgender people are currently underemployed and are 4x more likely to have a household income of less than $10,000. The aforementioned figures and statistics further accentuate the deteriorating work conditions for the LGBTQ+ Community and how we, as a society, are failing them at each and every stage of development.
But had this always been the case? Well, in the year 2012, the EEOC (Equal Employment Opportunity Commission- A Federal Agency that administers and enforces civil rights laws against workplace discrimination) ruled that employment discrimination on the basis of gender identity or transgender status is prohibited under Title VII. The decision held that discrimination on the basis of gender identity qualified as discrimination on the basis of sex whether the discrimination was due to sex stereotyping, discomfort with the fact of an individual’s transition, or discrimination due to a perceived change in the individual’s sex. On December 15, 2014, under a memorandum issued by Attorney General Eric Holder, the United States Department of Justice (DoJ) took a position that aligned with the EEOC, namely the prohibition of sex discrimination under Title VII encompassed the prohibition of discrimination based on gender identity or transgender status.
Then, in October 2017, under the new Trump Administration, Attorney General Jeff Sessions issued a directive withdrawing the Holder Memorandum. Jeff Sessions stated as a matter of law, “Title VII does not prohibit discrimination based on gender identity per se.” Devin O’Malley, speaking on behalf of the DoJ stated ,”the last administration abandoned that fundamental principle [that the Department of Justice cannot expand the law beyond what Congress has provided], which necessitated today’s action.” Sharon McGowan, a lawyer with Lambda Legal who previously served in the Civil Rights Division of DoJ, rejected that argument, stating, “This memo is not actually a reflection of the law as it is — it’s a reflection of what the DOJ wishes the law were” and further added, “The Justice Department is actually getting back in the business of making anti-transgender law in court.”However, the EEOC did not change its stance, which has put it at odds with the DOJ in certain legal cases. There had been no federal law barring discrimination against the LGBTQIA+ community at the workplace, until now.
On 15 June 2020, the Supreme Court of the United States of America unveiled the clout and gloom surrounding the aforementioned law and a landmark judgment had been passed that faltered the very foundation of the homophobic and transphobic people of the American society. On June 15, the Supreme Court ruled that employees and workers cannot be fired for being gay or transgender. Hence, the jurisdiction of Title VII has been further extended and it now includes LGBTQ+ workers, protecting them from any sort of discrimination they might be subject to at their workplace.
In a 6-3 decision, the court had ruled Title VII of the Civil Rights Act of 1964, saying that federal law prohibited discrimination based on sex as well as race, color, national origin, and religion, also applies to gay and trans people. Two conservative justices joined the court’s four liberals in the decision: Neil Gorsuch, a 2017 Trump appointee who wrote the ruling, and Chief Justice John Roberts.
Gorsuch wrote in the decision:
“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
However, the judgment had been a conclusive result of the lawsuits filed by 3 distinct individuals who questioned the applicability of Title VII and how they had been subject to discrimination from their employers for belonging from the Queer Community. The three cases that led to the ramifications in the aforementioned law are as follows:
Gerald Bostock v. Clayton County:
Gerald lost his job seven years ago for being gay. He worked in the Child Welfare Services Department for Clayton County. His performance had been appreciated by his employers which led him to be in charge of the county’s Court Appointed Special Advocates program.
“I was in a dream job. I loved working on behalf of underserved children in Clayton County, Georgia, near Atlanta. For 10 years I had a glowing record. And then, I joined a gay softball league to work on my health after beating prostate cancer.”
In early 2013, Gerald joined the Hotlanta Softball League i.e. a gay recreational softball league. Gerald had been disparaged for his sexual orientation at a meeting with the advisory board for his program in May 2013. He had been openly criticized by someone with significant influence in the Clayton County System, his petition stated. And in June 2013, he lost his job and the reason that had been cited was “conduct unbecoming of a county employee.”
This led him to launch a years-long battle that eventually culminated in the year 2020 ensuring equal rights for the LGBTQ+ workers.
“My story is just one of so many stories. So many others have lived in fear of being their true selves at work.”
Aimee Stephens & EEOC v. R.G.and G.R. Harris Funeral Homes
Aimee Stephens was an American Funeral Director and had been working in Detroit for R.G. & G.R. Harris Funeral Home in Garden City for six years as a male funeral director.
Aimee had been in a conservative Southern Baptist family and having no exposure to the LGBTQIA+ Community in the early years of life, struggled to decipher the dysphoria surrounding her gender identity. It was in 2009, that she came out to her wife as a transgender woman and realized that there are many people just like her.
However, in the year 2013, she decided to reveal her identity as a transgender woman to her colleagues and employer. Within 2 weeks of the confession, Aimee had been fired by her employer who apparently objected to her decision of dressing up as a woman. Aimee then started a legal case claiming that she had been protected under Title VII of the Civil Rights Act of 1964. Stephens, unfortunately, couldn’t witness the historic decision and passed away on 12 May 2020 from complications arising from kidney failure.
Donald Zarda v. Altitude Express Inc.
Donald Zarda had been a skydiving instructor for the Altitude Express based in Long Island, New York. In the year 2010, Zarda had offhandedly revealed his gay identity to a female customer in order to make her feel more comfortable while being attached to him during a skydive. However, the woman’s boyfriend later expressed his dissent to Altitude Express and after the jump, Donald had been fired.
“Donald had been terrified of the fact that he would not secure a job elsewhere, however, he knew that he couldn’t sit idly and blatantly accept his fate. And hence, he decided to fight against this discrimination and sued his former employer”, said his sister, Melissa Zarda. And hence, in October 2010, Donald sued Altitude Express over discrimination on the basis of sexual orientation and with the passing of the landmark decision, he finally had been vindicated. Donald passed away in 2014 as a result of a skydiving accident and his family continued to fight the case, defying all odds and overcoming several hurdles.
Neil Gorsuch further adds: “Ours is a society of written laws … An employer who fires an individual merely for being gay or transgender defies the law.”
But this is just the start. Still, a long and difficult battle awaits the LGBTQIA+ Community and the journey ahead doesn’t seem easy. The federal law does not offer protection to those working at businesses with fewer than 15 employees. Disparities in healthcare facilities provided by employers and insurance companies seek immediate reparation. The importance of gender-neutral bathrooms is another issue that needs redressal. And these problems constitute only the tip of the iceberg. A myriad of issues seek our attention and we need to take it upon our shoulders to ensure that no person is ever forced to hide his/her identity fearing the repercussions of such revelation.
“By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” – Neil Gorsuch