Students Speak: Civil Rights for all? Why Title VII must be amended.

To celebrate our first 50 years at The Santa Barbara & Ventura Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases. 

Part one of my study outlines decades of government abuse, societal phobias, and marginalization faced by LGBTQ people. This overview provides historical context as to why Title VII must be amended to include sexual orientation and gender identity in the definition of “sex.”

Part two will discuss the Equality Act, three LGBTQ Title VII cases before the Supreme Court in 2019, and how the Supreme Court may amend Title VII.

Civil Rights for all?

The Civil Rights Act of 1964 is one of the most important pieces of legislation in U.S. history. It attempted to extend civil rights to all Americans by preventing discrimination of protected marginalized groups. However, in most states, the marginalized group, labeled as lesbian, gay, bisexual, transgender and queer/questioning (LGBTQ), is not part of civil rights for all under Title VII.

Under Title VII, unlawful employment practices include discrimination of employees “because of . . . race, color, religion, sex, or national origin.” But, the word “sex” does not explicitly include clear protections from employer discrimination based on sexual orientation or gender identity.

Within a year, two branches of the federal government will decide if Title VII’s word “sex” includes sexual orientation and gender identity. Congress will soon vote on the Equality Act and in summer 2020, the U.S. Supreme Court will decide the scope of “sex” after reviewing three LGBTQ Title VII cases. In order to understand the importance of these decisions, it is vital to examine the history that has led to this juncture.

Decades of oppression fueled the 1969 Stonewall Riots and the Gay Rights Movement

It has historically been illegal and unsafe to be homosexual. In the 1950s, Senator Joseph McCarthy vehemently spoke about cleaning up the government from “Communists and queers.” Incited by McCarthy’s queerphobia, the government and police engaged in sting operations to arrest gay men. The first U.S. Supreme Court gay rights case was based on entrapment. During this time, lesbians and gays were also in danger of being deported.

Despite some gay rights activism in the early 20^th century, American homosexuals mostly lived their personal lives in hiding. Wherever homosexuals frequented, they were harassed by police. LGBTQ people were shunned by society and labeled as deviants. After World War II, American societal norms began to expand as young people moved to big cities. Homosexuals became more visible, and this visibility resulted in more clashes with law enforcement and the government.

Leading up to the riots at the Stonewall Inn, American LGBTQ people suffered for decades from violence, criminalization, and ostracism by the government, law enforcement, and society.

Stonewall Inn riots

Fifty years ago, the Stonewall Inn riots were the impetus behind the Gay Rights Movement and the current LGBTQ movement.

In the late 1960s, the Stonewall Inn, in lower Manhattan, was a refuge and meeting place for homosexuals. It was also a regular spot for police raids. New York law granted police carte blanche to arrest anyone wearing less than three pieces of “gender-appropriate clothing.” On June 28, 1969, employees and patrons of the Stonewall Inn were arrested on various charges including wearing inappropriate clothing. Instead of acquiescing to the arrests, this time nearly 400 gay, lesbian and transgender people threw debris, broke through police barricades, and eventually set the Stonewall Inn on fire.

Stonewall was different from other demonstrations of resistance against law enforcement. There had never been a “sustained mass uprising” by the homosexual community. Stonewall became the genesis to the gay liberation movement. The gay liberation movement encouraged gay, lesbian, and transgender members to “come out” and unite through pride of the gay culture. A year after Stonewall, the first Gay Pride Parade took place from the riot site to Central Park.

In 2016 President Barak Obama made Stonewall into a National Monument. For one Stonewall rioter, still living in Manhattan, the monument represents LGBTQ triumphs. It also represents ongoing battles for assimilation and equality under the law. The Stonewall riot in 1969 was just the beginning of the Gay Rights Movement.

Progress for LGBTQ teachers and new challenges for gay employees

The 1970s brought one of the most important fights to advance LGBTQ employment protections in the country. It was led by activist, politician, and San Francisco’s first openly gay public official, Harvey Milk. Milk fiercely fought against the 1978 Briggs Initiative in California, otherwise known as Proposition 6. If passed, Proposition 6 would have allowed California schools to fire homosexual teachers and those who openly supported those teachers. Through speeches, protests, support of labor unions, and the feminist movement, Milk defeated the Brigg’s Initiative.

Milk also helped pass San Francisco’s first ordinance banning employment discrimination based on sexual orientation. Wins for the LGBTQ community did not come without a price. Milk was assassinated in 1978.

The 1980s and 1990s brought progress for LGBTQ employee rights. For instance, the decision in the 1985 NGLTF v. Board of Education of City of Oklahoma City case, deemed a law unconstitutional when it permitted teachers to be fired or suspended for engaging in public homosexual conduct. In the 1997 Weaver v. Nebo School District case, the First Amendment and Equal Protection Clause were violated when a school threatened to terminate a lesbian teacher’s tenure position if she privately or publicly discussed her sexual orientation. The 80s and 90s also brought the AIDS epidemic, and the words “gay and AIDS” became synonymous. Among other types of discrimination, this resulted in wrongful termination cases, based on AIDS phobia and homosexual bias.

The evolving definition of Title VII’s “sex” and Price Waterhouse v. Hopkins

Under Title VII, unlawful employment practices include discrimination of employees “because of . . . race, color, religion, sex, or national origin.” The word “sex” under Title VII was first applied to protect female or male employees from employer decision-making based on gender. The scope of the word “sex” progressed to include discrimination protections for pregnant women and sexual harassment.

In 1989, Ann Hopkins filed a Title VII sex discrimination suit against her employer, accounting firm Price Waterhouse. Hopkins was the only female candidate up for a partner promotion out of 88 male candidates. While evidence showed Hopkins was an outstanding senior manager, she was also known for her abrasive, aggressive and unfeminine style. One of Price Waterhouse’s board members suggested Hopkins act and present herself more like a woman through clothing, make-up, and hair.

The U.S. Supreme Court found that the partners’ evaluative comments stemmed from how a woman should act—sex stereotyping. The court held that “sex” means if gender plays any part in employment decisions, no matter how small, those employment decisions are unlawful.

The Supreme Court decision in Price Waterhouse v. Hopkins was groundbreaking. After Price Waterhouse, LGBTQ employees used the expanded meaning of “sex” as sex stereotyping to win Title VII violations based on sexual orientation and gender identity.

Victories for Title VII sexual orientation and gender identity cases

In 1998, Justice Antonin Scalia’s holding in Oncale v. Sundowner Offshore Services, Inc., also opened the door to broader interpretations of “sex.” The Supreme Court held that Title VII includes same-sex sexual harassment. Justice Scalia reasoned that the scope of “sex” includes “reasonably comparable evils.” Scalia’s influential words in Oncale helped LGBTQ employees win more Title VII cases.

In the early 2000s, courts heard the first Title VII transgender employment discrimination cases based on failures to conform to sex stereotypes. In the 2011 Macy v. Holder case, the EEOC reasoned that a transgender police detective was discriminated against based on sex stereotyping. By 2012, the Equal Employment Opportunity Commission (EEOC) began to interpret discrimination based on sexual orientation and gender identity as prima facie violations of Title VII.

And in a 2013 case, Lusardi v. McHugh, the EEOC found that the Army violated Title VII by preventing a transgender employee from using the women’s restroom and allowing supervisors to use her male name.

In 2015, the EEOC instructed its offices to treat sexual orientation cases the same as sex discrimination cases, and it seemed that LGBTQ employees were finally protected under Title VII. However, after President Trump’s election in 2016, LGBTQ rights have regressed.

As this 50-year overview demonstrates, LGBTQ people have been historically disadvantaged from equality under the law. LGBTQ employees have suffered from invidious discrimination based on how they act, how they dress, and who they love. It is clear that the LGBTQ community should be included in the class of Americans protected within Title VII’s definition of “sex.”

ABOUT THE AUTHOR:

Aside from attending law school and working in the legal profession, Stephanie Sivers has been a professional musician and performer most of her life. Her belief that all Americans deserve equal rights, inspired her to write about LGBTQ employment rights under Title VII.

For more information about the author: www.linkedin.com/in/SKSiversJD

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