Sexual Orientation as a Protected Class

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Title VII of the Civil Rights Act of 1964 has been arguably one of the most historic pieces of legislation to shape employment law in modern times. While it offers protection to employees on the basis of race, age, sex, religion, disability, and national origin, it does highly contested, controversial, and present subject in political and social progressive dialogues in recent years. The federal law has not seen much benefit from this activity, but activity has altered change on the state level. As the country faces transition regarding the topic of sexual orientation, employers are being forced to adopt policies that consider the larger scope of this changing issue. Sexual orientation’s potential status change could affect employers on various levels: from benefits, to discrimination and harassment policies, to training and legal issues. It is at the forefront of current employment law debates and has been gaining more traction as the laws continue to be interpreted in broader senses. FEDERAL ANTIDISCRIMINATION LAWS AND SEXUAL ORIENTATION

Before one can understand the modern scope of sexual orientation as viewed through the law, they must understand the evolvement of laws over the past few decades. In the late 1950s, the debate regarding sexual orientation gained traction in America due to a case involving Frank Kameny. Kameny was fired on the basis of being a gay man, and the Supreme Court rejected his request for a hearing. As a result, demonstrations in support of Kameny began to blossom across the country. In 1975, the Civil Service Commission reversed its policy against gays as a result, and hence a long struggle for equality began (Bauer & Kleiner, 2001).

In the interim, Title VII of the Civil Rights Act of 1964 (Title VII) was passed. As mentioned, it provided broad protection for several protected classes of citizens on the basis of discrimination. This was especially prevalent in employment law. However, a person could still be fired on the basis of sexual orientation, as Title VII on provided protection on the basis of sex (Bauer & Kleiner, 2001). For most of its existence, Courts held to the belief that discrimination on the basis of sex could only occur between opposite-sexes. However, in 1998 the Courts brought clarity to this. They states that same-sex sexual harassments cases can be a violation of Title VII if it constitutes discrimination because of sex and is “so severe and pervasive that it constitutes an objectively hostile work environment” (Sexual Orientation and Gender Identity Discrimination, 2012). The Court held: “If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of… sex’ merely because the plaintiff and the defendant are of the same sex” (Reeves & Decker, 2011)

Federal protection for gays, lesbians, bisexuals, and transgender is very limited. There have been several attempts to pass a bill providing an amendment for equal protection on the basis of sexual orientation for the purposes of employment discrimination within the Employment Non-discrimination Act, or ENDA. Many national and internationally renowned organizations have formally adopted its principles, and have gone above in beyond in creating cultures inclusive of sexual orientation as a protected class (Bauer & Kleiner, 2001). If the bill passes, it would prohibit employment discrimination on the basis of sexual orientation and gender identity nationwide. Any employer of more than fifteen employees is required to comply with the act. As proposed, ENDA would define ‘sexual orientation’ as meaning ‘homosexuality, heterosexuality, or bisexuality,’ and ‘gender identity’ as meaning ‘gender-related identity, appearance, or mannerisms or other gender related characteristics of an individual, with or without regard to the individual’s designated sex at birth.’ So, if the bill were to become law it would also protect against...
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