Ari Ezra Waldman | ENDA | Law - Gay, LGBT | News

Anti-Gay Workplace Discrimination: Law, Politics, and Context

BY ARI EZRA WALDMAN

President Obama likely will soon sign an executive order that bans discrimination based on sexual orientation or gender identity among federal contractors. Long ago, he said he wanted to root out such discrimination. So, he and his Democratic allies in Congress tried to get an act of Congress passed; but, Republicans stood in the way of the Employment Non-Discrimination Act (ENDA) despite intense lobbying from the White House. Even before the President started his "We Can't Wait" campaign that sought to put progress ahead of Republican intransigence, he tasked the Labor Department to research a nondiscrimination executive order. His administration asked for input from politicians, lawyers, and advocates; various executive departments chimed in, as per the process for every executive order. Sources say everyone approved. And now, he likely is waiting for the right moment to sign it. 

WhataboutENDAThe Williams Institute at UCLA tells us that a growing list of approximately 16 million workers would benefit from an anti-discrimination executive order. It would allow a workplace victim of discrimination on the basis of his sexual orientation or gender identity to file a complaint with the civil rights office of the Labor Department. That office would then investigate the claim and, if necessary, file a complaint against the offending employer for reinstatement and back pay for the unjustly fired employee. And, while most of the biggest federal contractors already have protections for gays and lesbians in their own nondiscrimination policies, an executive order sends a powerful message about social values and the equality of gay persons.

A change.org petition urging President Obama to sign the executive order has more than 100,000 signatures. This is going to happen, and happen soon. But, like Title VII's ban on workplace discrimination on the basis of sex, the unique contours of a workplace anti-discrimination order about sexual orientation and gender identity will have much more to do with the interpretation of the order than the order itself. Title VII grew into what it is day through executive and judicial interpretation.

I argue that the same legal framework should be imported to the ENDA executive order.

CONTINUED, AFTER THE JUMP...

Title VII bans workplace discrimination on the basis of sex, but it was the Equal Employment Opportunity Commission's (EEOC) official interpretation of the law that ensured that both quid pro quo ("If you don't have sex with me, you're fired) and hostile environment (creating an intolerable sex-based atmosphere at work that is discriminatory against the opposite sex) harassment were unlawful.

Then, it was the Supreme Court that affirmed the EEOC's position (Meritor Savings Bank v. Vinson) and said that Title VII also bans discrimination based on gender nonconformity (Hopkins v. PriceWaterhouse) and harassment between members of the same sex (Oncale v. Sundowner). It was also the Court that nailed down the precise standard for hostile environment harassment claims: the harassment must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive and also is subjectively perceived by the alleged victim to be abusive (Harris v. Forklift Systems). Both the EEOC and the Court, then, played an essential role in developing Title VII into the success that it is today.

PatriciaShiuThe same will be true with a sexual orientation and gender identity nondiscrimination executive order (and a future ENDA, as well). As Freedom to Work's Tico Almeida told me, "The person that Obama appointed a few years ago to enforce the existing executive order for racial and gender non-discrimination at federal contractors is a very smart and talented civil rights attorney named Patricia Shiu.  She knows these LGBT legal issues backwards and forwards, in part because she has real world experience at her prior job representing LGBT Americans who have faced workplace discrimination just because of who they are or whom they love."

Ms. Shiu and her team will be tasked with interpreting, writing regulations, and enforcing a sexual orientation/gender identity nondiscrimination order. And, given her preeminent credentials, there is no reason why the contours of Title VII -- including hostile environment harassment, gender nonconformity, reasonableness and subjective harm -- will not be imported to this new context. Mr. Almedia believes that "the implementing regulations should explicitly ban anti-gay hostile work environments where words like 'faggot' and 'queer' get used on a regular basis to bully and harass gay employees.  Freedom to Work will submit comments to the Labor Department making that case."

Any rule that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity should also prohibit the creation of hostile environments on those bases that are so severe and pervasive that it constitutes discrimination. In the Title VII context, hostile environments can be created by putting up pornography around the office, sending around misogynistic emails, talking sex and sexual abuse at work, treating an employee of one sex differently than an employee of the other sex, using sexualized nicknames for women but not men, and a host of other behaviors that are based on the sex of the victim. The behavior creates an atmosphere of intimidation in the workplace, making it impossible for the victim to function. Once President Obama signs the executive order banning discrimination on the basis of sexual orientation or gender identity, creating a hostile environment on those bases should also be actionable: using inappropriate nicknames for gays and not for heterosexuals, talking about same-sex relations in derogatory ways, denigrating gay people through words or actions or pictures or emails, unwelcome touching against gay employees, and so on.

This type of behavior has come under the Title VII umbrella before. In Medina v. MGM Grand, a gay employee was subjected to anti-gay abuse, taunting, derogatory nicknames, and offensive touching. After an en banc rehearing, the Ninth Circuit voted 7-4 to permit Mr. Medina's Title VII claim even though the evidence suggested that he was abused because of his sexual orientation, not because he was male.

But, the 7 member majority split 4-3 on the particular theory: the 4 member "meta" majority held that Mr. Medina stated a clear claim of harassment on the basis of sex: "we ... hold that an employee's sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action. It is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature." The 3 remaining members of the majority said that Mr. Medina stated a claim of discrimination based on gender stereotyping because his harassers treated him "like [he was] a woman" and failed to act like a man should act.

Medina-like claims have not been permitted in all jurisdictions. Nor is it clear that the Medina "meta" majority's analysis is on the firmest legal ground. Nevertheless, the uncertainty surrounding the Medina decision and the veritable pretzel the Ninth Circuit contorted itself into in order to permit Mr. Medina's Title VII claim to continue highlight the need for protections against sexual orientation and gender identity discrimination. To be sure, an executive order that protects the LGBT community will be a necessary boon: in many cases, Title VII's ban on discrimination "because of sex" has been unavailable to would-be gay plaintiffs because discrimination on the basis of "sexual orientation" is not always the same as treating the sexes differently.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. "a gay employee was subjected to anti-gay abuse, taunting, derogatory nicknames, and offensive touching."

    And this kind of extreme (and very rare) situation is, unfortunately, the only kind that ENDA or any other employment anti-discrimination law will be relevant to.

    Such laws are largely unenforceable when it comes to discrimination in promotions, however, which is where the real damage is usually done.

    The only remedy for that kind of discrimination is a change in the culture, not legislation.

    Posted by: Rick | Mar 14, 2012 1:26:00 PM


  2. @rick: i absolutely disagree. those of us who have litigated workplace discrimination cases know that these laws are applicable and enforceable in cases of firing, failure to promote, etc. no one says any of these cases are easy, but you are not quite right to suggest that the order will only apply to hostile environment harassment.

    Posted by: Ari Ezra Waldman | Mar 14, 2012 1:30:08 PM


  3. Well, Ari, I would be really interested in hearing about some of the cases you have won that involved discrimination based on sexual orientation that did not involve blatant behavior like that in the case cited.

    I have been discriminated against, myself, and knew it, but could not imagine being able to prove it, and so did not pursue legal remedies.

    For example, how do you even prove that the defendant knew about your sexual orientation in the first place, without which evidence, how can a case even proceed?....which is not an issue in race- or gender-based discrimination cases, because race and gender are visible characteristics.

    I am genuinely curious, not trying to argue with you....

    Posted by: Rick | Mar 14, 2012 1:55:19 PM


  4. @rick: the cases are indeed hard to prove, even the cases that involve sex discrimination (not SO discrimination) are hard to prove, so your perspective applies in the entire workplace discrimination context. i was not quibbling with the difficulty-to-prove point; rather, it was the implication that the SO/GI executive order will only apply to hostile environment unlike sex discrimination laws. that said, there are various ways we gather evidence: depositions of coworkers, subpoena official reviews of the employee, statistics about hiring/promotions of the victims gender, etc., and so on, that help build a prima facie case. there is no doubt that these cases are hard to prove (plus, the harassment has to be so severe and pervasive, not just bad). but the executive order empowers the labor department to investigate and challenge all types of discrimination, quid pro quo, failure to promote, harassment, etc.

    Posted by: Ari Ezra Waldman | Mar 14, 2012 2:18:16 PM


  5. The true effect of any anti-discrimination litigation is not to make bigots hire equitably (they never will) or to create a legal remedy for their victims (such cases are hard to win). No, the true effect of any ENDA is to allow fair employers to hire equitably without paying a price in the open market. The classic model was Deep South department stores who wanted to hire across race line but could not until the law changed. (Meanwhile, President Fierce lacks the gumption to sign an Executive Order identical to what Edwin Edwards signed in Louisiana 20 years ago.)

    Posted by: John | Mar 14, 2012 3:39:26 PM


  6. This whole argument could have been avoided, and we definitely would have already had an anti discrimination employment law in place, if activists had not stupidly insisted on including transexuals into the mix - instead of having this issue discussed separately - as it most certainly should be due to the complex nature of the "gender expression" problem. Now the options are reduced to hoping for a presidential proclamation, which is vastly inferior to congressional action - an action that is obviously impossible now due to the Republican house majority.

    Posted by: Rance | Mar 14, 2012 3:52:09 PM


  7. Rance,

    Frankly, discrimination based on gender identity is no more complex than discrimination based on sexual orientation. In fact, some transgender plaintiffs have had far more success than virtually any LGB plaintiff has had under the existing Title VII framework. Full protections for the entire LGBT community are needed of course.

    For an excellent discussion of the necessity for a fully inclusive ENDA, I suggest you read this aricle: http://www.law.berkeley.edu/files/chefs/Clements_Sexual_Orientation.pdf. It explains why a trans-inclusive anti-discrimination law is not only good policy, but also necessary for full employment protections for gay, lesbian, and bisexual employees.

    Posted by: Matt | Mar 14, 2012 5:07:32 PM


  8. Obama needs to clean and rid the Federal government of gay discrimination. My neighbor (you all know the one, he works for HUD some 29 years now) has just been unjustly suspended for his outspoken support for equal employment. They grabbed his work computer and because it is theirs, say he was visiting non-approved gay websites (i.e. Towleroad, etc) (and no, he doesn't visit porn sites, they are auto-blocked). For that he was suspended.

    How is that any different from other Federal employees visiting HuffPo or MSNBC news sites? He has delved into his meager savings to hire a lawyer, fearful they will follow through with their threat of terminating him from his Federal job. Yes, 29 years, he has just one year to go to qualify for his pension and HUD is so cruel that they will probably remove him entirely. Gay discrimination at HUD and in the Federal Government makes me sick.

    Posted by: OS2Guy | Mar 14, 2012 5:18:15 PM


  9. How is Rick allowed to still post on here? Towleroad adopts a one strike and your out policy on racism often (as they should!) but Rick has said some of the most homophobic POS things ever.

    I get everyone is convinced he's certifiably insane, and his rants prove that, but still...

    Posted by: Michael | Mar 14, 2012 10:13:19 PM


  10. Hope the executive order gets signed. Thanks Ari for the insight. You are invaluable to this blog.

    Posted by: anony6 | Mar 15, 2012 3:09:56 AM


  11. LGBT who are waiting for a federal solution, either from ENDA or an executive order, should put efforts into passing status-blind legislation like the Healthy Workplace Bill. This piecemeal federal approach doesn't take into account that the vast number of harassment cases cannot prove a protected class basis. LGBT, help us pass the Healthy Workplace Bill. http://www.healthyworkplacebill.org
    37% or 54 million workers have directly experienced abusive conduct at work. New York and Massachusetts are very close to passing bills, but we have received almost no help from the gay community, despite the fact that this law would help everyone, including gay people. In Illinois, when the act nearly passed, our Advocates stood strong against pressure from the Illinois Family Institute to exempt churches from bullying gay people. We believe in full equality.

    Posted by: Kathy | Mar 18, 2012 8:29:08 AM


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