Outten & Golden: Empowering Employees in the Workplace

These are the stories of LGBTQ people who need the Equality Act’s protections

March 18th, 2019 | Casey Quinlan

Congressional Democrats reintroduced a sweeping nondiscrimination bill last week to bolster protections for LGBTQ Americans. If passed into law, the bill would clarify existing protections and fill the gaps in federal nondiscrimination laws.

The bill would amend the Civil Rights Act of 1964 to ban discrimination on the basis of gender identity and sexual orientation in housing, employment, education, federal programs, jury service, public accommodations, and credit and lending. It would also update the law to include protections against discrimination in public spaces and services like retail stores, transportation services, banks, and legal services.

According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing. Twenty states and D.C. explicitly prohibit discrimination in public accommodations. Only 14 states have non-discrimination laws covering credit discrimination.

A 2017 nationally representative survey conducted by the Center for American Progress found that among those who experienced sexual orientation or gender identity-based discrimination in the last year, 43.7 percent said it negatively affected their physical well-being. Nearly 40 percent said it negatively impacted their school environment and 52.8 percent reported that it negatively impacted their work environment. (ThinkProgress is an editorially independent news site housed at the Center for American Progress.)

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LGBTQ people have successfully argued that they’re covered by the Civil Rights Act of 1964 in the past. The term “sex-based stereotypes,” for example, has been used in cases to defend the rights of both queer couples and trans people. In 2017, a federal appeals court ruled for the first time that the Civil Rights Act protects LGBTQ workers from employment discrimination. Judge Richard Posner wrote at the time, “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.”

Still, the legal landscape’s protections right now are unclear and uneven. The Equality Act would bolster protections for LGBTQ people, and would help prevent stories like the following from happening again.

Employment
In 2013, a transgender woman named Aimee Stephens told her funeral home employer that she was going to dress differently to better reflect her gender. Her employer responded by firing her and offering her a severance package, which she did not accept. She worked there for six years, and co-workers testified that she was a “very good embalmer” and that people were happy with her work.

Stephens filed a complaint with the Equal Employment Opportunity Commission. Then, the EEOC sued the funeral home. In 2018, the 6th Circuit Court of Appeals ruled in her favor and said, it is impossible to fire a worker based on their status as a trans person without an employer participating in sex-based discrimination.

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“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court said.

The lawyers representing the funeral home have asked the U.S. Supreme Court to consider the case.

Meanwhile, the Department of Justice recently disagreed with the idea that queer workers are covered by the civil rights law. In 2017, the department filed a brief in the case Zarda v. Altitude Express, arguing that the federal law’s prohibition of sex discrimination does not include the prohibition of discrimination on the basis of sexual orientation.

Zarda v. Altitude Express centers on Donald Zarda, a New York skydiver who is now deceased. In 2010, Zarda said he was fired because of his sexual orientation. Given his physical proximity to students during the skydive, Zarda said he thought it would make female clients more comfortable to know about his sexual orientation before the skydive. One female client told her boyfriend of Zarda’s sexuality and the boyfriend decided to complain to Altitude Express. Then, the company fired him.

The Second Circuit did not accept the argument that Title VII of the Civil Rights Act prohibits discrimination on sexual orientation. The LGBTQ civil rights organization Lambda Legal requested that the ruling be reconsidered, but the Justice Department argued against including sexual orientation under the civil rights law. It also referred to the Equality Act of 1974 sponsored by Rep. Bella Abzug (D-NY), which would have prohibited discrimination on the account of sex, marital status, or sexual orientation in public accommodations, federally assisted programs, housing, and financing. The bill died in committee.

“Congress neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination,” the Justice Department wrote in its brief. “… In fact, every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.”

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Clarification from Congress would certainly help strengthen protections for LGBTQ people and make it more difficult to argue that it’s unclear whether LGBTQ people have these rights.

Housing
A married couple in Denver — Rachel Smith, a trans woman, and Tonya Smith, a cis woman — were looking for a new home with their two children in 2015.

When the couple found the right home, a rental townhouse, Tonya Smith emailed the landlord and described her family, including the fact that Rachel Smith is transgender. The couple visited the townhouse and met a couple that lived nearby. But the Smiths said that after they returned, they received an email from the landlord telling them they were not welcome to rent the townhouse because the neighbors were concerned. The landlord claimed their family would be the talk of the town, making it difficult for their neighbors to “keep a low profile.”

In 2017, U.S. District Judge Raymond P. Moore ruled that they were protected by the Federal Fair Housing Act, which prohibits discrimination based on sex, and wrote, “Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

But other housing discrimination cases involving LGBTQ people have not succeeded. In January, a federal judge dismissed a lawsuit from a married lesbian couple in Missouri, Mary Walsh and Beverly Nance, who said they were denied housing by a senior living community called Friendship Village. According to their lawsuit, they were denied occupancy in 2016 because Friendship Village has a policy that defines marriage as “the union of one man and one woman, as marriage is understood in the Bible.”

The couple claimed Friendship Village’s actions violated the Fair Housing Act and Missouri Human Rights Act. But U.S. District Judge Jean C. Hamilton said the Fair Housing Act did not protect against discrimination on the basis of sexual orientation.

Given the courts’ disagreements on whether queer couples are covered by the Fair Housing Act, it would make a difference for Congress to weigh in through the Equality Act.

Public accommodations
Title II of the Civil Rights Act of 1964 — the part of the law focusing on public accommodations, such as hotels, restaurants, theaters, and sports stadiums — doesn’t cover protections against sex discrimination, but only includes race, color, religion, and national origin. That means there is no legal remedy for discrimination on the basis of sexual orientation and gender identity in public accommodations under current federal law.

In 2013, Ally Robledo, a trans woman, was denied access to an Idaho grocery store, and workers called the police on her when she used the restroom. Lewiston Police Captain Roger Lanier referred to Robledo as a “a male subject who was using the female restroom” and said customers were uncomfortable. She was given a no trespass order after leaving the grocery store.

Robledo said at the time that she doubted it would have been more socially acceptable for her to use the men’s restroom and that when she has used the men’s restroom, “I found myself in a lot of dangerous situations.”

The Equality Act would protect Robledo, and others like her. The legislation would be the first national nondiscrimination bill of its kind for LGBTQ people.

The Equality Act has been introduced before — first in 2015 — but has not been able to get through the Republican-controlled Congress. Last fall, Rep. Nancy Pelosi (D-CA), who is now House speaker, said that if Democrats won the majority they would make the Equality Act a top priority. If the bill does pass the House, it’s unclear if Senate Majority Leader Mitch McConnell (R-KY) would even bring it up for a vote. His press secretary would not give NBC News a yes or no answer.

According to a 2018 PRRI survey, 71 percent of Americans said they favor laws protecting LGBTQ people against discrimination in public accommodations, housing, and employment. But 64 percent of Republicans said business owners should be able to refuse service to gay and lesbian people compared to 24 percent of Democrats and 42 percent of independents.

This article was originally published at ThinkProgress on March 18, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

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