By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Since the 1964 Civil Rights Act, the federal government has protected certain classes from discrimination in employment, including race, color, ethnicity, national origin and religion. Other classes such as gender, age and disability were later added by separate laws. However, the federal government currently affords no protections to LGBTQ individuals in the workplace on classifications including sexual orientation and gender identity.
What Is the Difference Between Sexual Orientation and Gender Identity?
There is a distinction between these two different protected classes. Sexual orientation is defined as the sex to which one is attracted. An individual can therefore be heterosexual (attracted to the opposite sex), homosexual (attracted to the same sex), bisexual (attracted to both sexes) or asexual (attracted to neither sex).
On the other hand, gender identity concerns the sex with which one identifies. An individual can identify as a man or woman, notwithstanding the specifics of anatomy at the time of that person’s birth. One can therefore be anatomically male and identify as a female or vice versa.
With gender reassignment surgeries available today, the lines on this topic have become blurry. Some people have even argued that gender is not a binary concept, but instead a continuum of perspectives.
As a person without any gender dissociation or gender dysphoria, I don’t intend to debate that point in this article. Regardless of the reality of gender identity for different individuals, the important piece for this discussion is to acknowledge that sexual orientation and gender identity are unambiguously two different concepts.
Unfortunately, conservative and religious lawmakers have so far prevented Congress from adding these sexual orientation and gender identity classifications to the list of already protected classes under the Civil Rights Act and subsequent amendments.
EEOC Has Achieved Some Legal Victories against Sexual Orientation Discrimination
Despite the lack of legislative consensus, the Equal Employment Opportunity Commission (EEOC) battled sexual orientation discrimination with several 2015 court cases at the federal level. The EEOC succeeded with a very clever argument: the idea that discrimination based on sexual orientation is really just a type of discrimination based on gender.
Imagine that an employer refuses to hire a male because he is gay and married to another man. Let’s assume the employer explicitly states that the applicant’s homosexuality is the reason for the denial; perhaps the employer is religious and believes that homosexuality is a sin.
Now, suppose that the applicant is instead a female, but married to the same male spouse. Under these circumstances, the female would be eligible for hire with the employer because her relationship is a heterosexual one.
But the only variable that changed between the two scenarios is the sex of the applicant. Thus, the EEOC successfully argued that sexual orientation is a kind of gender discrimination. Because gender is already a statutorily protected class, such discrimination practices must be illegal per se.
Despite this victory, it is important to note that these cases were won in the appellate circuit courts and not the Supreme Court of the United States (SCOTUS). Although these wins created powerful precedents that may be persuasive in subsequent cases, they do not have an authoritative weight in the same way that a SCOTUS ruling — or better yet, a legislative action — would have.
Discrimination Protection Varies Greatly by States
Given that the EEOC cases do not permanently and universally resolve the problems of discrimination based on sexual orientation and/or gender identity, several states have taken the initiative to expand protections for their citizens. That effort is pursuant to the Supremacy Clause of the U.S. Constitution, which allows states to enact laws wherever no federal law is in conflict.
The Movement Advancement Project (MAP) maintains on their website a map of the United States for employment non-discrimination laws. The map shows all 50 states and provides color coding for a few different classifications of employment non-discrimination protection.
States on this map fall into three categories:
1) States which have enacted legislation that prohibits discrimination based on both sexual orientation and gender identity
2) States which have enacted legislation that only prohibits discrimination based on sexual orientation
3) States with no protections whatsoever against discrimination for sexual orientation or gender identity
Currently, a total of 21 states have passed legislation which protects citizens from employment discrimination, based upon both sexual orientation and gender identity. Another two states interpret their existing anti-discrimination laws to include sexual orientation and/or gender identity protections. One state, Wisconsin, protects sexual orientation from discrimination, but not gender identity.
Sadly, that leaves 26 states in our union that currently have made no efforts to pass legislation that would protect residents from discrimination of these types. Geographically speaking, the locations of these states should not be a surprise.
The ‘Bible Belt’ is a region of the U.S. that is home to a lot of religious zealotry and conservative values, and both of these qualities are commonly correlated with opposition to recognizing equal rights and dignities for the LGBTQ community. This region extends from the upper Midwest all the way down into the Deep South.
As public opinion continues to shift, I predict that we will see in a relatively short time a majority of states passing protections against sexual orientation and gender identity discrimination. Eventually, the classes of sexual orientation and gender identity will be added to the list of explicit federal protections through legislative acts by Congress.
Current Political Climate Hindering Adoption of Anti-Discrimination Legislation
If I had been asked about a timeline prediction before the last election, I might have said that this change could be a realistic expectation in the near future. However, with the surprising change in the political climate since 2016 and the leanings against civil rights and protections for the LGBTQ community, it’s hard to say at this point how far back the regressive thinking of the current moment will set our country.
In 2019, the Democrat-controlled House of Representatives passed the Equality Act, which proposed to add sexual orientation and gender identity to the list of protected classes. However, this bill was effectively dead on arrival in the Senate, as Republican Majority Leader Mitch McConnell — who has dubbed himself the “grim reaper” of democratic legislation — ensured that it never saw a vote.
Hopefully, future lawmakers will have the courage to pick up the torch of progressivism and push forward to protect LGBTQ individuals from discriminatory treatment in employment and other contexts. In 2014, the Supreme Court ruled that no same-sex couple would be denied the right to marry. Logically, if we recognize the right of two same-sex people to marry, we should also recognize their right to be free from baseless discrimination in employment.
In future years, I suspect we will look back in shock and shame over the degree of controversy surrounding this issue today, in the same way that most people are appalled today by the degree of controversy that surrounded the fight for African-American rights in the 1960s. If you are like me and share these feelings now, write your representatives and let them know that our LGBTQ family, friends, and neighbors deserve equal protections under the law.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.