The Influence of Title VII on LGBTQ Workers

The direct effects of the Civil Rights Act of 1964 have been obvious since the time it was passed, but the indirect effects the Act has had on workers of oppressed groups in America has been less discussed. Specifically, Title VII helped define many of the protections LGBTQ individuals have seen come into law in recent years. None of these policies would have a precedent without Title VII, which made discrimination in the workplace based on sex, among other things, illegal.  Title VII influenced a wave of policies that advanced the rights of LGBTQ people in the workplace. The policies that have come from Title VII in recent years have created more inclusive workplaces all over the country that allow LGBTQ people to feel safe and comfortable where they work.

Some of the most important victories regarding discrimination against LGBTQ people came under the Obama administration and were based on the belief that discrimination based on gender identity and sexual orientation are considered sex discrimination under Title VII. One of the first steps President Obama took to ensure workplace equality for LGBTQ people was repealing Don’t Ask, Don’t Tell, a bill that banned openly gay people from serving in the military, in December 2010. This was an early sign from the administration that the definition of sex discrimination would be viewed differently in the executive branch than it had been in previous administrations.  From 1993 to 2011, gay, lesbian, and bisexual service members lived in fear of being outed because they could lose their job. Since the repeal of Don’t Ask, Don’t Tell, soldiers can live openly as who they are without being subject to legal discrimination from their employers.

In July 2014, President Obama signed an executive order amending Executive Order 11246 to add sexual orientation and gender identity to the list of protected categories.  He also expanded federal anti-discrimination policies and benefits for same-sex partners of federal employees in an effort to set an example for all employers. These policies expanded on existing protections given by Title VII. In this way, Title VII helped LGBT federal employees by granting safety and security in the workplace where previously they could be legally discriminated against because of their identities.

In order to better understand how gender identity and sexual orientation can be classified as sex discrimination under Title VII, we need to look at the court cases that led to that. Price Waterhouse v. Hopkins held that discrimination based on sex stereotypes, such as the way someone of a certain sex should dress or behave, is unlawful sex discrimination under Title VII. Using Price Waterhouse as precedent, Smith v. City of Salem held that Title VII prohibits discrimination against transgender individuals for gender-nonconforming behavior based on gender stereotyping, regardless of the cause of the behavior. This decision was further supported by the decision in Glenn v. Brumby, where the court concluded the plaintiff was discriminated against because she was transitioning from male to female, and that the discrimination was based on “gender-based behavioral norms.” Because everyone is protected by discrimination based on sex stereotypes, transgender individuals cannot be denied those same protections.

President Obama’s policies expanding the definition of sex discrimination to encompass gender identity and sexual orientation, however, only apply to federal workers. Not every state and company chose to follow his administration’s example, which has led to a large disparity in workplace protections for LGBTQ people throughout the United States. In 2016, the Human Rights Campaign released their State Equality Index, which reviewed state legislation from that year that affected the LGBTQ community. According to the Index, only 20 states and the District of Columbia prohibit employment discrimination based on both sexual orientation and gender identity, while two states prohibit employment discrimination based on sexual orientation only.  That means that in more than half the states in this country, it is legal for state and private employees to be fired because of who they love or who they are. Hundreds of thousands or even millions of Americans in these states wake up in the morning afraid of losing their job if their boss found out they are gay or transgender.

Some employers, however, do not follow the laws of the state they are located in. Many employers followed the Obama administration’s lead and implemented their own expanded anti-discrimination policies that often far surpass even federal law. Missouri, for example, has a non-discrimination policy for state employees based on sexual orientation, but no protections for transgender individuals or workers outside of state government. However, the University of Missouri created an expanded version of Title VII’s list of protected classes to include in its non-discrimination policy, which applies to employees, students, and visitors of the university. The list of protected classes has 19 categories, including sexual orientation and gender identity, and the University created the Office for Civil Rights and Title IX to enforce the policy. Other policies have been put into place to protect transgender peoples’ rights to have their preferred name and pronouns respected in the workplace, and a purposeful failure to call someone by the correct name and pronouns is considered a violation of Title IX. Depending on the severity of the violation, the person accused of discrimination can face a pay decrease, suspension, or even termination. The University further contributed to the inclusion of transgender workers by changing the signage on employee restrooms in a dining hall to make them gender-neutral after a transgender employee told Human Resources he did not feel comfortable using the men’s or women’s restroom and it was having a negative impact on his experience working there.

The precedent created by Title VII of the Civil Rights Act of 1964 has allowed for the passage of many positive policies that improve the quality of life for LGBTQ workers. Many of these policies, such as President Obama’s amendment to Executive Order 11246 and the University of Missouri’s non-discrimination policy, were simple expansions of Title VII’s ban on sex discrimination, but LGBTQ workers today would not be afforded the protections they are without the passage of the Civil Rights Act of 1964. Workplace protections for all people have come a long way since 1964, but as evident by more than half the states in the U.S., we still have a long way to go.

Written by Jay Bury, University of Missouri student. This was the winning submission of the 2017 Stevens & McMillan $1,500 Scholarship award.