Wednesday, March 30, 2016

Sexual Orientation-Based Employment Discrimination and the Role of the Federal Government by Greta Savickaite

The Supreme Court’s 2015 ruling in Obergefell v. Hodges marked one of the greatest victories for same-sex couples in the United States.[1] The Court’s decision in Obergefell invalidated state same-sex marriage restrictions, allowing same-sex couples to legally marry in every jurisdiction. [2] This ruling follows other victories of the lesbian, gay, and bisexual (LGB) equality movement, such as the enactment of the Matthew Shepard Act and the repeal of Don’t Ask Don’t Tell. [3][4] However, despite these national civil rights victories, the LGB movement faces one of its biggest challenges yet, employment discrimination.[5] Currently, there is no federal law that explicitly prohibits employment discrimination on the basis of sexual orientation; and thus although same-sex couples can legally marry, employers in most states can legally discriminate against employees as a result of their sexual orientation. [6][7] In order to ensure the safety of LGB individuals, the federal government needs to enact a federal anti-employment discrimination law, which protects individuals from sexual orientation-based discrimination.

Although in Obergefell the Supreme Court held that same-sex partners who wish to marry are entitled to “equal dignitary in the eyes of the law,” the decision does not include equal treatment in respect to employment.[8] Many argue that sexual orientation has no link to workplace treatment; however, research over the last few decades has shown that LGB individuals are consistently subjected to high levels of discrimination as a result of their sexual orientation.[9] United States workforce consists of an estimated 5.4 million lesbian, gay, bisexual, and transgender individuals.[10] Out of the 5.4 million, approximately 8% to 17% have been fired or denied employment, while 7% to 41% have been verbally or physical harassed by their coworkers as a result of their sexual orientation.[11] It has also been shown that compared to heterosexuals, openly LGB job applicants are 40% less likely to receive job interviews in certain sectors.[12] While 10% to 28% were denied promotion or given a negative performance evaluation because of their LGB identity.[13] Additionally, survey results of probability samples representative of the United States population show that out of self-identifying LGB individuals who were surveyed, 42% had experienced at least one form of discrimination because of their sexual orientation, while 35% reported that harassment was the most prominent form of discrimination.[14][15] Of those surveyed who were employed by federal, state, or local government 25% reported having experienced discrimination as a result of their sexual orientation.[16] Finally, out of heterosexuals who completed the survey 12% to 30% reported that they had witnessed sexual orientation based discrimination at their place of employment.[17]

            Many attempts to limit employment discrimination through federal legislation have fallen short. Since 1974 numerous bills have been introduced in both the House and the Senate seeking to prohibit employment discrimination on basis of sexual orientation.[18] The earlier bills looked to amend the Civil Rights Act of 1964, particularly Title VII, to include sexual orientation as a protected class, along with race, sex, religion, national origin, and color.[19] The proposed amendments of Title VII gained increasing support between 1974 and 1991.[20] However, the amendments did not survive and thus suing an employer on sexual orientation based discrimination would quickly fail as the courts have explained that Title VII protects against sex-based and not sexual orientation-based discrimination.[21][22]

            In addition to the push for Title VII amendment, LGB activists and supporters have attempted to gain anti-discrimination protections under the Fourteenth Amendment’s Equal Protection Clause. In Romer v. Evans, the Supreme Court held that state governments cannot enacts laws that legalize discrimination of a particular class of people, unless the laws are rational means to a legitimate government purpose.[23] The ruling protected LGB individuals from state legalized discrimination; however, later it was determined that the Fourteenth Amendment discrimination protections do not apply beyond state and federal government actions.[24] This was supported by Shelley v. Kramer where the court ruled that “[Fourteenth] Amendment erects no shield against merely private conduct, however discriminatory or wrongful.”[25]

            Employee Non-Discrimination Act (ENDA) is a recent bill, which sought to be a freestanding statute that would prohibit LGB-related employment discrimination.[26] The bill failed to receive enough votes in Congress on two occasions; however, it finally passed the Senate in 2013.[27] Although it passed the Senate, the bill did not have much hope in the House as House Speaker John Boehner, who was a strong opponent of ENDA, had indicated that he will not allow the bill to come up for a vote.[28] In fact, the bill never did come up for a vote, even though President Obama was ready to sign it into law.[29]

            The failure of the federal government to enact sexual orientation anti-discrimination legislation has led to a variety of negative consequences. Due to the visible discrimination in the workplace most LGB individuals are not out at work.[30] In a 2009 national survey 51% of LGB employees did not reveal their sexual orientation to most of their coworkers, while in a 2011 study 48% LGB white-collar employees reported that they are not open about their sexual identity.[31] Fear of discrimination has shown to be the primary reason for not disclosing LGB identity.[32] Additionally, studies of LGB population inside the workplace show that LGB people suffer psychological and physical harm from the prejudice, stigma, and discrimination that they experience.[33] High levels of perceived discrimination or fear of discrimination among LGB individuals have been linked to higher prevalence of psychiatric disorders, psychological distress, depression, loneliness, and low self-esteem.[34] While experiences of anti-gay verbal harassment, discrimination, and violence have been associated with lower self-esteem, higher rates of suicidal intention, anxiety, anger, post-traumatic stress, and other symptoms of depression.[35] Moreover, LGB employees who experienced discrimination were less satisfied with their jobs, were more likely to contemplate quitting, and were more likely to miss work.[36] Finally, as a result of employment discrimination men in same-sex couples earn less than men in heterosexual marriages.[37] These results demonstrate the massive negative consequences that employment discrimination has on a large part of the American population.

            Employment discrimination remains one of the biggest challenges for LGB activist and supporters. Despite the success of Obergefell and other legislation, LGB individuals are subjected to discrimination due to their sexual orientation daily.[38] At the beginning of 2016, approximately 121.2 million people in the United States were employed in the private sector, and there is no national protection from discrimination for those who identify as LGB.[39] Due to lack of legislative protections, LGB individuals are subjected to unfair treatment at their place of employment ranging from harassment, wage cuts, and job loss.[40][41] Because employee pensions and welfare benefit plans are governed by the Federal Employee Retirement Income Security Act of 1974 (“ERISA”), it is the federal government’s duty to enact legislative protections for LGB individuals so they are not prevented from receiving their ERISA benefits as a result of employment discrimination.[42] The federal government can achieve these protections by passing the Equality Act, introduced in the House in 2015, which protects individuals from sexual orientation and gender-based employment discrimination

[1] See generally Obergefell v. Hodges, 135 U.S. 2584 (2015).
[2] Keith Cunningham-Parmeter, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle, 67 Fla. L. Rev. 1099, 1100-01 (2015).
[3] See generally 18 U.S.C.A. § 249 (West 2009).
[4] See generally 10 U.S.C.A. § 654 (West 2010) (repealed).
[5] Cunningham-Parmeter, supra note 2 at 1101.
[6] Alex Reed, Redressing LGBT Employment Discrimination via Executive Order, 29 Notre Dame J.L Ethics & Pub. Pol’y 133, 133 (2015).
[7] Cunningham-Parmeter, supra note 2 at 1100-01.
[8] Nan D. Hunter, Interpreting Liberty and Equality Through the Lens of Marriage, 6 Cal. L. Rev. Circuit 107, 111 (2015).
[9] Brad Sears & Christy Mallory, Employment Discrimination against LGBT People: Existence and Impact, in Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide 40-1, 40-2-40-3 (2014).
[10] Reed, supra note 6 at 133.
[11] See id. at 133.
[12] Cunningham-Parmeter, supra note 2 at 1101.
[13] Jennifer C. Pizer et al., Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 Loy. L.A.L. Rev. 715, 721 (2012).
[14] Sears & Mallory, supra at 40-3-40-4.
[15] Jason E. Shapiro, Employee Benefits Law: The Hidden Gap Enabling Sexual Orientation Discrimination in Employment, 19 Cardozo J.L. & Gender 511, 513 (2013).
[16] Sears & Mallory, supra note 9 at 40-4.
[17] See id. at 40-7.
[18] Reed, supra note 6 at 134.
[19] See id.
[20] See id.
[21] Cunningham-Parmeter, supra note 2 at 1117-18.
[22] Shapiro, supra note 15 at 513.
[23] See generally Romer v. Evans, 116 U.S. 1620 (1996).
[24] Shapiro, supra note 15 at 523.
[25] See generally Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
[26] Reed, supra note 6 at 134.
[27] See id. at 135.
[28] See id.
[29] See id.
[30] Sears & Mallory, supra note 9 at 40-13.
[31] See id. at 40-13-40-14.
[32] See id. at 40-15.
[33] See id. at 40-17.
[34] Pizer, supra note 13 at 740.
[35] See id. at 704.
[36] Sears & Mallory, supra note 9 at 40-18.
[37] See id. at 40-16.
[38] See generally, Reed, supra note 6.
[39] Chuck Vollmer, Jobenomics U.S. Unemploument Analysis-Q4 2015, Bureau of Labor Statistics, 1, 13 (Feb. 6, 2016), (provides overall employment statistics in the United States).
[40] See generally, Sears & Mallory, supra note 9.
[41] See generally, Reed, supra note 6.
[42] Shapiro, supra note 15 at 512.

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