Bachelor Thesis
BA International Studies – Faculty of Humanities Leiden University
Student number: S1332953 Instructor: Jennifer Fynn MA Date of submission: 1-06-2016 Thesis seminar: North America, B Word count: 10902 words
An Assessment of Federal Legal Protections against anti-LGBT Employment Discrimination in the United States of America
Table of Contents
Introduction ... 2
Chapter I: Lack of protection against anti-LGBT employment discrimination ... 5
Chapter II: Workplace discrimination ... 7
Work as an important identity marker ... 7
Brief overview of studies into LGBT workplace discrimination... 8
The far-reaching consequences of discrimination ... 9
Need for more comprehensive studies ... 10
Chapter III: The shift in ‘sex’ discrimination ... 12
Formal and interpersonal discrimination ... 12
Domino effect ... 16
Extra impact of federal legislation ... 16
Chapter V: Literature review of federal anti-LGBT employment discrimination legislation 18 Chapter VI: Title VII ... 21
Legislative history ... 21
Entanglement of sex, gender, and sexual orientation ... 22
Broad interpretation of ‘sex’ ... 23
Inconsistent application of Price Waterhouse ... 26
Positive trend towards transgender protections ... 29
Equal Employment Opportunity Commission ... 30
Chapter VII: Employment Non-Discrimination Act ... 32
Lack of support ... 33
Chapter VIII: Equality Act ... 35
Strengths of the Equality Act ... 36
Potential weaknesses of the Equality Act ... 37
Discussion and conclusion ... 39
Introduction
American LGBT individuals have experienced an incredible amount of progress in the past fifteen years; from the landmark Supreme Court decision Lawrence v. Texas – in which sodomy laws were declared unconstitutional – to the legalization of same-sex marriage in 2015, it is clear that the American human rights landscape has undergone significant developments when it comes to lesbian, gay, bisexual, and transgender (LGBT) rights. Survey data illustrates that attitudes towards LGBT individuals have improved significantly in the United States; for example, Americans have become more accepting of homosexuals teaching at school, are increasingly more tolerant of their co-workers being gay, and increasingly support legal protections for LGBT people (Decoo 5; "Gay and Lesbian Rights"). Additionally, a growing number of popular media outlets have begun to take a pro-LGBT stance, and most large American corporations, such as Target, Facebook and Google, have publicly affirmed their support for the LGBT community (Socarides).
Based on the trend towards a more positive perception of LGBT individuals, one might be led to believe that the fight for LGBT equality has been won and that LGBT people experience little discrimination in the United States. Nonetheless, research shows that LGBT individuals still frequently face discrimination based on their sexual
orientation and/or gender identity in many different spheres, such as being denied access to public accommodations and being humiliated in the workplace (Ozeren 1204). Several studies have illustrated that institutional anti-LGBT discrimination, in the realms of employment, housing, public accommodation, credit, and education, is not only an
existing, significant problem, but also more widespread than often thought by the general public (Braquet 313).
Although employment discrimination is concerning in and of itself, considering its impact on LGBT individuals and their community, it is even more concerning that there is a lack of legislation to protect them from it. As work not only secures one’s financial stability, but also functions as an important identity-marker and social space, discrimination in the workplace can have particularly harmful effects on LGBT people. While EU law, for example, does protects all LGBT people who live in the EU member states, there is no American federal law that explicitly does this for American LGBT employees who face formal and interpersonal discrimination ("European Union"). Although several counties, cities, states, and companies have their own laws, policies or statutes in the United States, it is often unclear for LGBT plaintiffs to what extent these measures protect them and how they can successfully seek relief from being
discriminated against by colleagues or employers (Gay 65). In fact, a large number of states currently do not offer any legal protections to LGBT employees. Although LGBT employees who have fallen victim to discrimination may try to file a complaint under Title VII of the Civil Rights Act, on occasion being successful under this federal law that prohibits discrimination on the basis of ‘sex’, plaintiffs have had mixed results with this approach. Attempts to implement a stand-alone law against anti-LGBT employment discrimination, called the Employment Non-Discrimination Act, have been made by nearly every congress since the 1990s, but failed time and again (Reed 284). As of now, no federal law explicitly protecting LGBT employees has been passed, and it is uncertain whether this will happen in the near future.
To assess how federal legislation could protect those LGBT employees who suffer from discrimination on the work floor, it is important to demonstrate the types of issues they face each day, explore the legal landscape of the past decades, and analyze what type of law is needed to effectively protect those who are marginalized. I will also explore how anti-LGBT discrimination has changed and what is needed for a
discrimination law to truly be effective, thereby addressing a gap in the literature. Firstly, chapter I will provide the context in which I have conducted my research by explaining the current patchwork of anti-discrimination laws; in chapter II, it is established that workplace discrimination against LGBT individuals is a prominent issue that takes many shapes; chapter III offers an analysis of how anti-LGBT employment discrimination has transitioned from overt, formal discrimination to more subtle interpersonal
discrimination; chapters IV, V, and VI respectively deal with Title VII, the ENDA and the Equality Act, to identify the strengths and pitfalls of these federal laws. Finally, the last chapter will present an overview of the issues with the legislative efforts made in the past decades and look at how future legislation may offer better protections to LGBT employees who are discriminated against.
Chapter I: Lack of protection against anti-LGBT employment discrimination
While race, ethnicity, age and sex are protected classes that are explicitly protected from workplace discrimination under the Civil Rights Act of 1964, sexual orientation and gender identity are not. Although federal employees have received legal protection from anti-LGBT discrimination since 2015 through an executive order by President Obama, there is currently no federal umbrella law that prohibits anti-LGBT discrimination in the private sector (Hudson). However, given that in the US
"approximately 9 million adults identify as lesbian, gay, bisexual, or transgender; 19 million adults have participated in same-sex sexual behavior; and an estimated 25.6 million adults experience same-sex attraction", LGBT employees make up a significant part of the workforce (Rabelo and Cortina 379). Especially now that a majority of Americans support the implementation of anti-discrimination laws for LGBT people, it seems that the U.S. is lagging behind.
The current protections offered at the local and state level are a patchwork of different overlapping policies and laws, with some states covering all LGBT identities, some states only using certain narrow, exclusive definitions in their legislation, and others offering no protections at all ("Equality Maps"). The experience an LGBT plaintiff can thus be entirely different, depending where in the U.S. the discrimination occurred. In twenty states and the District of Columbia, employment non-discrimination law covers both sexual orientation and gender identity; in two states, the law covers only sexual orientation; and in twenty-eight states, no employment non-discrimination law covering sexual orientation or gender identity exists at all ("Equality Maps"). Transgender people, who have a non-conforming gender identity, are thus the least protected class of all.
Other marginalized identities, such as intersex and asexual individuals, are often left out of the debate entirely.
Experiences of LGBT people differ on more grounds than solely on geographic location: in fact, LGBT individuals are a broad, diverse group that is spread out across different age, sex, race and class categories. For this reason, it is important to keep an intersectional perspective in mind when analyzing the group’s experiences, given that, for instance, a white male upper-class homosexual might run into different issues than a poor woman of color. However, LGBT individuals do share fundamentally similar problems in the workplace. For anyone in the LGBT+ community, it is rather bizarre that "a couple who gets married at 10 a.m. remain at risk of being fired from their jobs by noon and evicted from their home by 2 p.m. simply for posting their wedding photos on Facebook" (Lorenz). Apart from the palpable risk of being fired, LGBT employees face the risk of receiving negative performance evaluations, experiencing wage discrepancies, feeling forced to stay in the figurative closet, receiving less callback responses when applying for jobs, and experiencing more negative interpersonal relationships – all because of their sexual orientation and/or gender identity (Badgett et al., Executive Summary 2007). Yet these Americans are left without explicit legal protections, feeling as if discrimination against them is silently being condoned.
Chapter II: Workplace discrimination
Work as an important identity marker
Although it has not always been the most visible political goal of the LGBT movement, creating a more inclusive workplace environment is in fact an extremely important objective, considering how significant the consequences of anti-LGBT workplace discrimination are. Estimates of the ratio of LGBT employees to the heterosexual workforce, are said to be between 3-12% in the United States (Day and Greene 2008), which means that a significant number of individuals are potentially influenced by a hostile work environment, strained interpersonal relationships with colleagues, and several different types of homophobia every time they go to work. Despite the fact that work might not be the first identity marker that comes to mind when thinking about one’s identity, it does in fact play a central role in our lives, as is reiterated by Gates, who states that "well-being at work matters because work occupies a
significant amount of an individual’s time and energy" (Gates 108). Especially in the U.S., where society not just places material value on work, but cultural and social value as well, work is often seen as more than just a paycheck. Barry notes that "the very fabric of our life revolves around work. Our entire identity encompasses the type of work we are doing—or not doing, for that matter. The type of food we eat, the neighborhood we live in, the clothes we wear, and how we socialize—all somehow are related to our work" (qtd. in Gates 108). As work can genuinely have a substantial impact on one’s identity and to many people constitutes a primary space for constructing social connections, it is important to look more closely into what types of problems LGBT Americans run into in the workplace every day and how they can be protected from these issues.
Brief overview of studies into LGBT workplace discrimination
Studies into LGBT workplace discrimination that have been conducted in the past decades differ in scope and methodology; whilst several studies rely almost exclusively on in-depth interviews with LGBT individuals to truly capture their experiences, others emphasize statistics and survey results. "The Power of Out", for example, makes use of several case studies to explore how LGBT people suffer emotionally, psychologically and financially from both subtle and overt forms of discrimination (Sears, Sumberg and Fargnoli); Tilcsik makes use of audit studies focusing exclusively on homosexuals, looking more closely into how sexual orientation affects the hiring process (Tilcsik); the Williams Institute mostly uses quantitative data from surveys in its reports, and Braquet offers a comprehensive overview of sources to be used for further research. There is still a shortage of exhaustive reports that do not simply focus solely on quantitative or
qualitative data, but truly combine both to capture the essence of the problem. Therefore, it is important to use quantitative data in order to understand the context in which anti-LGBT workplace discrimination occurs and how many Americans suffer from it, but also to use qualitative data to acknowledge how severe the psychological, emotional, and even physical impact of this can be on LGBT people.
Especially in those states where legal protection from anti-LGBT discrimination is lacking or non-existent, LGBT employees face a plethora of challenges in the
workplace. They can be "discharged from employment without being provided with an adequate explanation by their employer", harassed (Sears 40-4), have their workplace vandalized, receive unequal pay, be denied certain benefits for their same-sex partners, and be pressured into staying in the figurative closet – and in fact, many Americans have
experienced one or more forms of these forms of homophobia. According to the General Social Survey of 2008, "forty-two percent of the nationally representative sample of LGB-identified people had experienced at least one form of employment discrimination because of their sexual orientation at some point in their lives" (Pizer, Sears & Hunter 722). Research shows that "verbal harassment, jokes, [...] inequality in wages, and inequality in hiring processes" occur frequently for LGBT individuals (Ozeren 1205). The issues faced in the workplace by LGBT individuals are complex, especially
considering that homophobia can be both overt and subtle, conscious and subconscious, and is often aimed at individual employees.
The far-reaching consequences of discrimination
The effects of the aforementioned types of discrimination are heinous enough on their own, but they also create a situation in which employees are presented with a difficult choice, as they are forced to make a decision about whether or not they should ‘come out’ and disclose their sexual identity. The impact of such a decision should not be underestimated, as it is a choice that must be made continually. As stated by King et al,
The issues faced by gay and lesbian workers are more far reaching than many heterosexual individuals recognize. Dealing with choices, such as whether to bring a partner to an office picnic, monitoring each and every word, and changing pronouns when talking about weekend plans, may have negative consequences that could be either alleviated or intensified by disclosure depending on how the disclosure is received" (King et al. 569).
‘Coming out’ at work is thus as a double-edged sword. On the one hand, coming out has been proven to be pivotal in the emergence and healthy development of an LGBT identity
(568). Everly, Shih, and Ho have illustrated that ‘out’ employees possess higher
organizational commitment, greater job satisfaction, and fewer conflicts in the work and home demain (Ozeren 1206). Not being ‘out’, on the other hand, could lead to
internalized homophobia or denial, cause anxiety, and lead to a plethora of psychological problems. Disclosure of one’s sexual orientation could lead to discrimination and social isolation, as well as a lack of opportunities for career advancement in the workplace. LGBT individuals thus frequently face a difficult challenge when it comes to making a decision about whether or not they should disclose their sexual identity.
Need for more comprehensive studies
Despite the abundance of surveys and polls conducted on the topic of anti-LGBT employment discrimination, it is difficult to find studies that go beyond descriptive accounts of experiences and deeper into the motivations behind discrimination. More and more studies into workplace discrimination, however, are being conducted, now that it has been established just how persistent the problem is. Tilcsik’s audit study, for example, on how employers handle their application processes with regards to male homosexual vs. heterosexual job applicants produced significant results. As mentioned before, experiences within the LGBT group do differ to some extent; Tilcsik’s research, in which the test group consisted of male homosexuals, evidently produced results that are specific to male homosexuals. However, despite the results of the study being gender-specific, any qualitative data into how the sexual orientation of prospective candidates influences an employer’s hiring process is extremely valuable. Tilcsik’s results illustrate that employers often are not explicitly homophobic, but rather – upon finding out that an applicant is homosexual – forgo the homosexual applicant in the hiring process due to
stereotypical negative personality traits associated with male homosexuality (Tilcsik 616). These employers might themselves not even be aware of their subconscious bias, and perhaps even consider themselves LGBT allies; but in spite of this, they associate male homosexuality with personality traits such as not being assertive enough or decisive enough, thereby clearly still discriminating on the basis of sexual orientation. And
Tilcsik’s study, in a broader context, also applies to lesbians and bisexuals: whilst male homosexuals might be discriminated against because they are perceived as insufficiently bold, and "lacking “toughness” and “masculinity”" (596), lesbians and bisexual women in fact are often punished for the stereotype that they are too tough and masculine. All groups intentionally and unintentionally get discriminated against because they do not meet society’s gender norms. This type of discrimination is particularly hard to combat, given that it happens on a subconscious, concealed level. This type of research shows that deeper insight into discrimination is particularly important, because it allows us to ensure that anti-LGBT discrimination legislation can adequately target the day-to-day issues faced in the workplace, regardless of what shape the discrimination takes.
Chapter III: The shift in ‘sex’ discrimination
It is clear that anti-LGBT employment discrimination takes various forms; be it wage disparities, less mobility up the career ladder, verbal and physical harassment, or other psychologically, emotionally, socially, and financially harmful types of prejudice. Yet as employment discrimination is often subtle and subconscious, it can potentially be difficult to recognize. In the late 20th century, sex stereotyping – used here in a broad sense, to encompass sex, gender or sexual orientation – mostly occurred on a more overt level. Men and women were being treated differently as a group: through providing women on the whole with a lower wage, for example, with one government agency even "forcing female employees to contribute greater monthly payments to its pension fund than male employees" (Kramer 895). Sex discrimination nowadays does not necessarily formally target men or women as a group, but rather punishes those individuals who ‘fail’ to adhere to society’s stringent gender and sexuality norms. It punishes those who do not adhere to what society expects of ‘men’ and ‘women’, and given the pervasive
heterosexist ideology in American society, LGBT people by default do not meet those expectations. LGBT people these days are more and more often confronted with
interpersonal discrimination and complex, individualized discrimination that can difficult to prove with objective, hard evidence (Barron and Hebl; Kramer).
Formal and interpersonal discrimination
Barron and Hebl have established two different types of discrimination that apply to employment discrimination. Whilst formal discrimination refers to the most overt types of discrimination, including discrimination in hiring and promotion, access, and distribution of resources”, interpersonal discrimination "refers to more subtle nonverbal
and indirect verbal behaviors that occur during interactions with others—for instance, whether members of a given group are more likely to be met with glares or scowls or less likely to be greeted with friendliness and enthusiasm—relative to members of other groups" (Barron and Hebl 192). In many cases, anti-LGBT employment discrimination thus arises in the context of interpersonal relationships between the employee and their colleagues or employers, rather than a context in which the employer or colleague clearly overtly holds all non-conforming or LGBT people in contempt. This form of
discrimination is always more complex to recognize and more complex to legislate than formal discrimination. However, even formal discrimination can take place unbeknownst to the LGBT employee, or even unbeknownst to the subconsciously biased employer themselves.
Kramer explains the phenomenon of modern sex discrimination as follows:
Sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women—such as women who are aggressive and men who are effeminate. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace (Kramer 895).
Kramer’s opinion must not be misinterpreted to mean that aggressive women and effeminate men do not get discriminated against. Rather, Kramer’s point is that sex discrimination occurs to those who do not conform to heterosexist gender and sexuality stereotypes, including even heterosexual people who dress outside of the norm,
while they are at work, and effeminate men who work in a very stereotypically masculine work environment. Employers and colleagues of these individuals generally do not have an overt bias against the entire group, yet these employees do suffer from being shut out and made to be felt different, or being excluded from social activities. With regards to legislation, the individualized and often personal and private nature of the exchanges in which discrimination occurs needs to be taken into account. Currently, legislation oftentimes only protects very explicit forms of discrimination, such as verbal abuse in which a gay man is called a ‘fag’, or a lesbian woman being called a ‘dyke’ when she is fired. Truly effective legislation should not only also cover more implicit anti-LGBT discrimination, but also protect heterosexuals who do not conform to American society’s norms.
Chapter IV: Efficacy of legislation
As it has been established that anti-LGBT employment discrimination exists, and is persistent and widespread, it appears logical that legislation should – at least partially – solve the problems that LGBT employees are dealing with. Yet politicians – even those who claim to support the LGBT community – have used the argument that there is an "absence of conclusive evidence for the efficacy of such legislation" to their advantage, stating that they highly doubted that a federal anti-discrimination law would actually protect from anti-LGBT employment discrimination (Barron and Hebl 191). Barron and Hebl have done extensive research into the impact of legislation on discrimination, by analyzing how the implementation of anti-LGBT discrimination legislation in several cities affected how employers and colleagues treated LGBT employees. They explain that legislation generally impacts behavior simply because in a rational cost-benefit analysis, discriminating does not weigh against the possible punishment that could result from it. However, whilst this might be applicable to overt, formal discrimination, this hardly applies to subtle, interpersonal discrimination, as the chance of an employer or colleague being ‘caught’ is so minimal (Barron and Hebl 193-194). Barron and Hebl present that "the mere fact that discrimination is labeled illegal (even without the threat of punishable enforcement) may be sufficient to create a symbolic effect in changing the acceptability of prejudice and discrimination towards lesbians and gays" (198), and that by outlawing anti-LGBT discrimination, those who become aware of the legislation will also positively influence those who are not aware of the legislation. In their words, "community
members’ recognition of local antidiscrimination laws corresponded to their belief in the reduced acceptability of sexual orientation discrimination in their communities" (196).
Domino effect
When community members became aware of the local anti-discrimination laws, they thus found sexual orientation discrimination less acceptable, and when those who were not aware of the legislation started to perceive those who were aware as supportive of LGBT people, it had the ability to influence their attitudes towards LGBT people as well. This has been further established in a different study by Zitek and Hebl, in which researchers found that "when one person condemns or condones discrimination toward various group members, others may follow", and that "these effects and the strength of the influences depend on the clarity of social norms" (Zitek and Hebl 874). By enforcing a federal law, the social norm could not be clearer, potentially causing a domino effect of acceptance as more people become aware of the anti-discrimination law.
Extra impact of federal legislation
To conclude, Barron and Hebl recognize that their results are promising on a local level already, and that legislation on a national level could have an ever more wide-reaching impact. Firstly, federal anti-LGBT discrimination legislation would outlaw discrimination, thereby causing employers and colleagues who want to discriminate against an LGBT employee to re-think their behavior by means of a cost-benefit analysis; secondly, the legislation would send a symbolic message that would cause perpetrators of discrimination to re-think their behavior, because they would not want to fail to adhere so the moral norms set by the law; and thirdly, given that those individuals who are aware of the legislation can spread positive attitudes throughout their community, a federal law would be hugely effective in combatting discrimination. As stated by Barron and Hebl, "the force of law is not simply a fear of punishment; people fear violating the law
because it authoritatively describes moral rules of conduct", and a federal law against discrimination sends the clear message that the American society as a whole condemns anti-LGBT discrimination in the workplace (Barron and Hebl 194).
Chapter V: Literature review of federal anti-LGBT employment discrimination legislation
The two main bills in the field of federal legislation against anti-LGBT
employment discrimination are Title VII – a well-known section of the Civil Rights Act that prohibits workplace discrimination on the basis of sex – and the Employment Non-Discrimination Act (ENDA), a stand-alone act that was introduced in several different congresses but never passed. The most recent proposal for federal anti-LGBT
discrimination legislation is the Equality Act, but as this bill was proposed in 2015, scholarly research is still lacking. Title VII, which prohibits ‘sex stereotyping’, has successfully been used by some LGBT plaintiffs who claim it implicitly includes sexual orientation and gender identity; the Obama administration has endorsed this view and several courts have used this approach as well. However, other courts have refused to interpret ‘sex’ this way, and the issue remains unclear. As sexual orientation and gender identity are not explicitly mentioned in the law, so far it has been a matter of
interpretation by the courts.
The ENDA is a piece of legislation that was proposed several times throughout the past decade – and it would have "ban[ned] discrimination based on sexual orientation and gender identity in all aspects of employment, including hiring, termination,
promotion, compensation, and most terms and conditions of employment" (Vagins iv). ENDA failed several times due to political schemes, but it also never fully had 100% support from the LGBT community and from legal scholars (Reed 283). Rudin, Reed, and Thompson, for example, were critical of the ENDA as they did not find its
and disagreed with the religious exemption clause (Rudin 340-341; Reed 277; Thompson 285).
The ENDA proposal has by now been replaced by the proposed ‘Equality Act’, which is much more comprehensive and expansive – but it is doubtful whether the bill has a chance of passing through congress, for legislative, social and political reasons. The Equality Act, proposed in 2015, would amend the “Civil Rights Act of 1964 to include sex, sexual orientation, and gender identity among the prohibited categories of
discrimination or segregation in places of public accommodation” and also expand the range of protections for LGBT individuals in the spheres of housing, credit, and
employment ("H.R.3185"). In fact, the Act "establishes explicit, permanent protections against discrimination based on an individual’s sexual orientation or gender identity in matters of employment, housing, access to public places, federal funding, credit, education and jury service", and in addition, it would "prohibit discrimination on the basis of sex in federal funding and access to public places" ("Why the Equality Act?"). It is thus an incredibly comprehensive bill, cutting into many more sectors than just
employment. The Human Rights Campaign, which is one of the most vocal proponents of the Equality Act, has published a wealth of resources and information on the legislation. Other scholars are also optimistic about the new proposal, but a solid analysis of the political, sociological, and economic consequences of such a bill is highly needed.
All three bills have or have had their own strengths and weaknesses, and analyzing them may help us consider the transitions anti-LGBT employment
have fought in the past twenty years may help us assess what a satisfactory federal anti-discrimination law would look like.
Chapter VI: Title VII
One of the major pieces of legislation that has been used for the purpose of combatting discrimination on the basis of sexual orientation and gender identity, is Title VII of the Civil Rights Act of 1964, which states the following shall be unlawful:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any
individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin (Gay 67-68).
Legislative history
Title VII is most widely known for its transformative nature with regards to race relations in American society, as the Act was a landmark piece of legislation that offered protection from, at least, formal discrimination against ethnic and racial minorities. Although it is less known, however, Title VII also includes the word ‘sex’ – which has come to be interpreted in different ways throughout the past decades. It has been argued
by many scholars that the American Congress “only had the traditional notions of sex in mind” when passing the Civil Rights act, and that ‘sex’ was added to the clause as a mere afterthought (Rotondo 108; Dreiband and Swearingen 2; Andersen 964). In fact, the Equal Employment Opportunities Commission (EEOC), the committee commissioned with the task to enforce the Civil Rights Act, "viewed the sex amendment as a "fluke" that was "conceived out of wedlock"", and tried to ignore its existence (Freeman 163-164); and with such little congressional guidance, courts were uncertain what to make of the clause (Parrish 473). However, the number of complaints filed on basis of ‘sex’ was much higher than expected, forcing courts to start looking into the matter (Freeman 163). The inclusion of the word ‘sex’ in Title VII of the Civil Rights Act could thus no longer be ignored.
Entanglement of sex, gender, and sexual orientation
The Courts have "struggle[d] in differentiating sex, gender and sexuality when adjudicating Title VII employment discrimination claims" (Castle 1943). Whilst some courts have argued that ‘sex’ must be read in its original context, thus protecting against discrimination that occurred because a plaintiff was a man or because the plaintiff was a woman, others have radically expanded what the notion of ‘sex’ encompasses. Initially, in the case of General Electric Co v. Gilbert (1976) – lacking a precedent for a more expansive interpretation – the court did use a very narrow definition of ‘sex’ when looking at equal access to employee benefits (Andersen 964). The court established a test that looked at whether men and women had access to the same benefits; if one gender was excluded from something the other gender did have access to, this was
include pregnancy benefits would pass this test" (964). It could be said that women were not necessarily excluded from benefits that men did have, and there was thus no
discrepancy in the opinion of the court. The test "essentially meant that if the
discrimination did not simply divide groups by the two genders, it was not discrimination because of sex" (964). Several years later, in 1978, the Pregnancy Discrimination Act was introduced, "to amend Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy" ("The Pregnancy Discrimination Act of 1978"). The implementation of the Pregnancy Discrimination Act was the beginning of a more modern interpretation of ‘sex’ discrimination, as it illustrated that the courts understood that sex discrimination was not as straightforward as simply comparing whether or not men and women were both ‘equally’ included in employee benefits.
Broad interpretation of ‘sex’
In 1989, there was a pivotal shift in the legal framework when the Supreme Court expanded the definition of ‘sex’ in its ruling in Price Waterhouse v. Hopkins, thereby ruling that gender discrimination equated sex-based discrimination. In this influential decision, the court used a more open-minded approach to what discrimination could be defined as; the court also decided that discrimination was not only protected when it had economic consequences, but also when it constituted a "hostile work environment" (Castle; Andersen 966). Plaintiff Ann Hopkins was denied partnership at a law firm, despite being the most experienced candidate and achieving the highest test scores. And although Hopkins was did not identify as lesbian, this cade made discrimination based on stereotypical gender traits cognizable under Title VII. Although there were other factors in play, such as Hopkins’ supposed inadequate social skills, the main reason why
Hopkins did not get the position was related to the fact that she was deemed too masculine and "needed to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry" (Clancy 124). The plurality opinion of the court stated that "as for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group [...]" (Case 1334). In summation, this means that the Court found stereotyping on basis of gender
nonconformity at odds with its ban on discrimination on basis of sex. Although initially protections against sex stereotyping had only been used to protect women or men as a group, on the basis of the fact that they were suffering from sex discrimination as a group, Price Waterhouse thus covers those individuals who simply do not match the stereotypes that men or women were expected to conform to.
The fact that sex stereotyping has come to include stereotyping on the basis of having non-conforming gender traits or behavior has been used by LGBT plaintiffs, "to argue discrimination on the basis of sexual orientation or gender identity is in fact discrimination on the basis of noncompliance with gender stereotypes, and therefore within the protection Title VII’s prohibition on sex discrimination" (Rotondo 109). The ruling in Price Waterhouse thus opened a window of opportunity for LGBT individuals, (as well as other non-conforming individuals) who were being discriminated against because of aspects of their identity, such as their appearance, the way they talked, or the way they dressed. It is important to take into account that there were perhaps other, lawful reasons for the firm not to hire Hopkins, but that does not take away the fact that she was discriminated against. As such, the Supreme Court decided to rule that a
"mixed-motive situation required the employer to prove, by a preponderance of the evidence, that it would have made the same employment decision despite the partial discriminatory reasons" (Castle 1952). It is also important to note that this decision prohibited gender stereotyping, rather than explicitly prohibiting sexual orientation stereotyping.
Despite the fact that sexual orientation does not equate ‘sex’ when it comes to the narrow definition of Title VII, “the resulting [Price Waterhouse] doctrine, while still inconsistently applied, has the potential in its broadest form to reach plaintiffs
traditionally excluded from Title VII protection” (Herz 403). This means that although LGBT plaintiffs traditionally are not explicitly mentioned in Title VII, they can seek relief under the implicit protections the law offers. This has had mixed results, despite the precedent set by Price Waterhouse. In some cases, the courts have ruled that the Price Waterhouse approach could only be applied if the employer of the plaintiff evidently "treat[ed] one sex worse than another" (415); this meant that the sex stereotyping a plaintiff had encountered needed to be compared with how someone of the opposite sex was treated. Galdieri-Ambrosini, for example, who felt that she was clearly being discriminated against because she did not adhere to gender stereotypes; her "more attractive, stereotypically feminine coworker, [who] was given less work and more lenient treatment", which led her to believe that she suffered from sex discrimination, on the basis of not conforming to stereotypically feminine gender traits (Herz 413).
However, she did not get relief, as she was not necessarily being treated differently from her male co-workers - just from her female co-worker who did adhere to gender
adhere to gender stereotypes was protected, was not applied by the court in Galdieri-Ambrosini v. National Realty & Dev. Corp.
Inconsistent application of Price Waterhouse
In 2002, in the case of Centola v. Potter, Price Waterhouse’s gender nonconformity approach was applied, but sexual orientation was not found to be
protected by the court. Centola sought relief under Title VII after he was harassed at work for perceived homosexuality and failing to conform to masculinity. The court found that Centola did indeed have a valid claim under Title VII because of sex stereotyping, stating that "if Centola [could] demonstrate that he was discriminated against "because of . . . sex" as a result of sex stereotyping, the fact that he was also discriminated against on the basis of his sexual orientation has no legal significance under Title VII" ("Centola v. Potter"). This meant that the court did not find Centola’s perceived homosexuality a cognizable claim by itself, but his being harassed for perceived gender nonconformity did constitute a valid claim. In fact, judge Gertner recognized that "sexual orientation is often, if not always, motivated by a desire to enforce heterosexually-defined gender norms" (Rotondo 110), thus explicitly linking sex to gender and in turn gender to sexuality. The judge went on to state that "the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear" (Case 1350). Judge Gertner essentially affirmed that any sexual orientation discrimination was linked to gender non-conformity, which was protected under the Price Waterhouse approach of Title VII. The confusion expressed by Judge Gertner about the entanglement of gender and sexuality was clearly reflected in many other court during the past decades. Several LGB plaintiffs were able to successfully redress their hardship, whilst others were told
that if they “were harassed simply because of [their] sexual orientation”, this was "not actionable under Title VII" (Case 1352).
Centola v. Potter might have radically expanded the scope of Title VII, but many courts were not willing to use this approach with regards to stereotyping, and whilst some LGB plaintiffs were able to seek relief, others were left in the dark. During the Vickers v. Fairfield Medical Center case (2006), the court again proved to be reluctant or completely unwilling to include sexual minorities as a protected class under Title VII. Vickers
"befriended a homosexual doctor and was thereafter subjected to harassing accusations of being homosexual"; he was verbally harassed and subjected to gay slurs, as well as physically harassed by colleagues who "simulated anal sex with him" (Andersen 970). It might seem clear that Vickers was harassed because he did not conform to society’s norms of masculinity, but the court refused to grant him relief, stating that "recognition of Vickers’ claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination" (Dreiband and Swearingen 9). This would have automatically equated sex discrimination to sexual orientation discrimination, as it could be argued that any (perceived) homosexual man failed to conform to
mainstream sex norms and stereotypes, as had been argued by the judge in Centola v. Potter. The court found this ‘bootstrapping’ of sexual orientation under sex stereotyping objectionable and thus failed to offer Vickers any protections from the abominable
discrimination he was subjected time (Castle 1954). The court alleged that Vickers’ claim "was merely a sexual orientation claim under another name", failing to take him seriously despite the clearly harmful effects of the discrimination he was subjected to (Soucek 739-740). After a previous expanded interpretation of ‘sex’, sexual orientation reverted back
to having low chances of success under Title VII’s protections: LGBs were on occasion able to seek relief under Title VII, but only if they were able to illustrate that the
discrimination they encountered was explicitly related to their failure to conform to gender norms - i.e. if their discrimination was directly linked to sex as in gender, and not to sexual orientation. This made the situation very complex for LGB plaintiffs, and meant that many forms of both interpersonal and formal individualized discrimination were not protected under Title VII.
Several sexual/gender minorities have been more successful at seeking relief under Title VII; transgenders being the most important group here. Transgenders have been argued by some courts to naturally not conform to society’s norms and standards with regards to gender – the hegemonic idea that one’s biological sex and gender are one and the same – and thus, by extension, automatically not to conform to sex (Rotondo 112). Initially, the courts refused to grant transgenders any protection under Title VII at all, arguing that Title VII was “not so expansive in scope as to prohibit discrimination against transsexuals” as this was not the original aim of the inclusion of ‘sex’ (Dreiband and Swearingen 5). Furthermore, as explained by Spero, transgender individuals were basically ascribed no sex at all, as sex was originally intended to mean either ‘male’ or ‘female’, thereby making it impossible for transgenders to make any claims on basis of sex discrimination. Spero argues that the courts "denied relief to transgender plaintiffs based on the fact that they are not part of a protected class, finding that they were
discriminated against either because of their change of sex, or their transgender status, or based on their mental illness": but not on ‘sex’ as discrimination because one is a man or
a woman (Spero 388). The arguments were thus essentially based on a traditional interpretation of the word ‘sex’ and on transphobic ideas of gender identity.
Positive trend towards transgender protections
Despite the lack of protection in the past, there has been a slow but positive trend towards more protections for transgender individuals under Title VII. Schroer v.
Billington, a particularly divergent court case (2008), had a significant influence on this. Schroer, a male-to-female transgender woman, was highly qualified for a job that she was offered at the Library of Congress right after applying. However, after she informed her prospective employer about her desire to transition into being a woman during an introductory lunch, the job offer was retracted (Spero 406). The employer stated that there would be several issues with Schroer assuming the position of "a specialist in Terrorism for the Congressional Research Service" (406). As stated by Spero, "the primary concerns were Schroer's ability to get or maintain a security clearance and whether Schroer would have credibility, both with her contacts in the military and with members of Congress when she had to testify" (406); but rather than actually looking into these issues, Schroer’s employer retracted the offer immediately. Instead of hiring the candidate who had unanimously been thought to be the best fit for the job by those on the hiring committee, Schroer received a telephone call from Preece the day after they had met, and Preece declared that after a "long, restless night", she had decided that “for the good of the service,” Schroer would not be a “good fit" given the "circumstances" they had spoken of during their lunch ("Schroer v Billington"). The court found that Schroer was discriminated against on two different dimensions; 1) on the basis of sex, i.e. her being a woman, and 2) on the basis of sex stereotyping, as laid out in Price Waterhouse v.
Hopkins. Essentially, as a woman, Schroer did not conform to the gender stereotype of what a woman should act or look like, which is very similar to the approach used in Ann Hopkins’ case. The court reached the conclusion that on all these different grounds, Schroer could seek relief. Once again, the judge explicitly stated just how confusing the intangible concepts of sex, gender, gender identity and sexual orientation are:
Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an
inherently gender-nonconforming transsexual. One or more of Preece’s comments could be parsed in each of these three ways. While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself" ("Schroer v. Billington" 28).
Equal Employment Opportunity Commission
The EEOC (Equal Employment Opportunity Commission) was instated in 1961 to enforce the section of the Civil Rights Act of 1964 that made it illegal for employers to discriminate on the basis of race, color, religion, sex, or national origin. However, as mentioned before, there were few policy makers and legislators who truly believed in the inclusion of the word ‘sex’ – and even influential political magazines, such as the New Republic, stated that they did not understand why the EEOC, which was an important administrative body with many tasks at hand, would have to enforce "a mischievous joke perpetrated on the floor of the House of Representatives" (Bird 139). As such, the EEOC initially refused to take any sex discrimination cases seriously. However, when the EEOC
started to enforce the prohibition of sex discrimination, it severely impacted the gendered divisions that had previously existed within the workplace, allowing men and women more freedom in their choice of jobs and equalizing the benefits extended to men and women (Case 1338). Although the EEOC initially failed to take the inclusion of ‘sex’ seriously, it has become a fierce proponent of applying the approach that ‘sex’ implicitly included sexual orientation and gender identity. The EEOC now also realizes that there are several routes through which one may arrive at this conclusion, as it found that Title VII’s protections reached beyond that of just biological sex "in part because the term 'gender' encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity" (Rotondo 113). However promising this decision may be for LGBT plaintiffs, courts are not obliged to follow the EEOC’s guidelines, and uncertainty remains for LGBT employees who face discrimination (115).
Chapter VII: Employment Non-Discrimination Act
The Employment Non-Discrimination Act was first introduced in 1994, and has since been introduced repeatedly in different Congresses. In fact, ENDA was modeled after Title VII, effectively copying the language of Title VII and explicitly including ‘sexual orientation’ as a protected class (Herz 401). Although the piece of legislation did not pass in Congress in 1994 or 1995, it had a very solid chance of passing through the Senate in 1996. LGBT activists had high hopes for making progress for LGBT rights, but their hopes were soon crushed, when the bill failed to pass on a 49-50 vote and a mere year later, the Defense of Marriage Act was enacted – which federally infamously defined marriage as being between a man and a woman (Sung 503). The reason why DOMA passed and ENDA did not, was directly related to a political trade-off, which is why the image of the ENDA was damaged heavily by the implementation of DOMA (503).
The ENDA was introduced again and again, each time dying either in the Senate or in the House of Representatives – with different degrees of LGBT inclusivity each time: initially, for example, transgender individuals were not protected under ENDA, as ‘gender identity’ was not included in the protected classes. Although a version of ENDA including ‘gender identity’ was introduced in 2007, this was quickly amended again and the trans* inclusion was removed from the bill, which "sparked a loud, contentious, and very visible debate within the mainstream LG(BT) movement over the questions of trans-inclusion" (Vitulli 155). At this point, many LGBT activists felt disappointed and
betrayed by the political games the ENDA was caught up in, and it started to become more and more clear to many in the LGBT community that the only way ENDA would
pass if it were over the back of transgenders (Reed 284). Representative for the opinion of many in the LGBT community, the National Center for Transgender Equality
"announced that it "would rather have no ENDA than a bill that left [transgender people] behind"" (Sung 504). Many other LGBT organizations and institutions echoed the opinion, arguing that no ENDA was better than an exclusive ENDA. The controversy and debate led to trans* inclusion in the subsequent versions of ENDA, but at this point, the bill had an abundance of shortcomings and lacked substantial support (Reed 284).
Lack of support
Not only did support for the ENDA decrease because the LGBT community felt betrayed when gender identity was removed from the bill, but the ENDA was also criticized for its extremely broad religious exemptions and a variety of legislative weaknesses. One example of this was ENDA’s prohibition on disparate impact claims; whilst under Title VII, a plaintiff can seek relief by making a claim under "facially neutral employment practices having a disproportionately adverse effect on persons of a particular protected group" (Reed 295), the ENDA did not allow for such a protection. Disparate impact discrimination significantly contributes to discrimination against LGBT people, exactly because it is the subtle, subconscious type of discrimination LGBT employees are often subjected to by employers. Employers are very unlikely to explicitly state that they are discriminating against the LGBT employee because of their sexuality, yet ENDA would have required the LGBT plaintiff to prove that the employer
intentionally discriminated against them because of their sexual orientation (Althauser and Greenberg). Furthermore, many scholars argue that amending the Civil Rights Act to include sexual orientation and gender identity would be a better alternative to
implementing a stand-alone act such as the ENDA; it would equate discrimination on basis of sexual orientation and gender identity to discrimination on basis of other factors, such as age and race, thus symbolizing that discrimination against LGBT people should truly be taken as seriously as other forms of discrimination that are no longer socially acceptable.
Chapter VIII: Equality Act
The entanglement of gender identity, gender expression, gender, sex, and sexual orientation has proven to pose a problem on several different levels, causing confusion for courts and LGBT plaintiffs alike. If the Equality Act were to pass, the word ‘sex’ in Title VII would be replaced with ‘sex, sexual orientation and gender identity’; gender identity would be defined as "the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth", whereas sexual orientation would come to be defined as homosexuality, heterosexuality, or bisexuality ("H.R.3185"). Sex itself would not just include gender, but encompass sex stereotypes; pregnancy, childbirth, or a related medical condition; and sexual orientation or gender identity ("H.R.3185").
The Equality Act would essentially expand the implicit protections of Title VII, in which sex stereotyping has come to include sexual orientation and gender identity, and make these protections explicit. In fact, the Equality Act states that "numerous provisions of Federal law expressly prohibit discrimination on the basis of sex, and Federal agencies and courts have correctly interpreted these prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes"
("H.R.3185"). Thus instead of being a completely new, original piece of legislation, the Act asserts it is rather a reformulation of existing protections and ensuring that these protections become express – thereby not only sending a symbolic signal that anti-LGBT discrimination will not be tolerated, but also ensuring there is no room for different interpretations that do not protect LGBT people. The co-sponsors of the Act even
the mixed results LGBT plaintiffs have had whilst seeking relief "causes unnecessary hardships for LGBT people": they are thus aware of the potential and limitations of Title VII and working towards an improvement of Title VII’s protections ("H.R.3185").
The Equality Act seems to be the legislation that LGBT people have been waiting for: not only does the inclusion of gender identity and sexual orientation in the Civil Rights Act elevate the political significance of anti-LGBT discrimination, by setting these protected classes side by side with race, national origin, and age, but it also seems that the Act would be truly inclusive, protecting transgender individuals where the failed ENDA did not. Still, there are several concerns, such as vague or non-inclusive definitions and the plausibility of the Act actually being passed. The manner in which the definitions of sexual orientation and gender identity have been phrased, might potentially
unintentionally limit the protection the Equality Act is trying to provide, as several minorities have been left out of the equation. Whilst lesbians, bisexuals and homosexuals are explicitly granted protection, are questioning, queer, asexual, intersex and
polyamorist individuals protected as well? The bill evidently has both strengths and weaknesses.
Strengths of the Equality Act
Most LGBTIQA organizations have been extremely supportive of the Equality Act, with the Human Rights Campaign stating that "decades of civil rights history show that civil rights laws are effective in decreasing discrimination because they provide strong federal remedies targeted to specific vulnerable groups", and the American Civil Liberties Union calling the bill ‘historic’ ("Why the Equality Act", Melling). The
Act, with over 60 corporations – including Apple, Facebook, and Nike - forming a coalition to promote the legislation ("Why the Equality Act"). As the HRC explains, this support is significant, because "with operations in all 50 states, headquarters spanning 22 states and a combined $1.9 trillion in revenue, the companies that make up the coalition employ over 4.2 million people in the United States" ("Why the Equality Act"). Even President Obama and Vice-President Biden have backed the legislation, with VP Biden asserting that although the bill might not pass with the current Congress in place, it will certainly do so in the future because it is "simple and [...] straightforward" (Ocamb).
Potential weaknesses of the Equality Act
Despite the support from the corporate world, it is uncertain whether the Equality Act will ever make it further through Congress than the ENDA: despite the symbolism behind amending Civil Rights Act sending a strong message that anti-LGBT
discrimination will not be tolerated, it is also a cause of unease for some civil rights organizations. Several members of the Leadership Conference on Civil & Human Rights, for example, have stated that "amending the Civil Rights Act to include LGBT
protections makes some longtime civil rights advocates uneasy because it potentially opens the historic law up to harmful amendments" (Johnson). Secondly, the Equality Act is incredibly expansive, affecting not only employment, but also affecting the spheres of public accommodations, housing, education, credit, jury service, and federal funding. Whilst this is a strength, it also decreases the chances of the bill passing through
Congress. Considering the ENDA’s failure to be enacted, despite having been introduced in Congress repeatedly since 1994, the question has been raised whether such a
affected employment could not. Especially with many states now introducing legislation that prohibits transgender individuals from using the restroom matching the gender they identify with, a bill that states that it "prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity" might not find the momentum it requires to pass in the current political landscape ("H.R.3185").
Discussion and conclusion
This paper has established that anti-LGBT employment discrimination is a widespread problem that is experienced by LGBT Americans in the workplace of all ages, genders, races and social classes. Although this type of discrimination used to be overt and explicit in the past, the social and political perception of LGBT Americans has improved to such an extent, that overt anti-LGBT discrimination is not something most employers or colleagues can no longer ‘get away with’. However, a new form of discrimination has emerged, which is much harder to identify objectively; it is more subtle, generally occurs within interpersonal relationships on the work floor rather than through bureaucratic or formal measures, and frequently manifests itself in subconscious biases rather than solely in intentional discrimination. There is currently no federal legislation in place that explicitly prohibits anti-LGBT employment discrimination, whilst research shows that LGBT employees suffer from verbal and physical harassment, wage discrepancies, and hostile work environments. They face difficult situations in which they must either disclose their sexuality or gender identity and risk being fired, or choose not to disclose it and risk psychological, social, and emotional harm.
Through analyses of Title VII – with its mixed, inconsistent results, the ENDA – which never passed Congress in the first place, and the Equality Act – which has
enormous potential, but a slim chance of being passed, I have illustrated the difficult legal patchwork American LGBT employees face when confronted with discrimination.
Considering how important work is as an identity marker and as a social space, the implementation of federal anti-LGBT employment discrimination legislation should occur as soon as possible. Although the Equality Act would offer expansive protections,
an analysis of the ENDA illustrates that it is unlikely for such a bill to pass through the American Congress. Applying the ‘sex’ protection established in Price Waterhouse under Title VII, and convincing courts to expand this interpretation to cases of LGBT
discrimination might currently have the best chance of protecting LGBT people. It has the academic and political support that the ENDA failed to obtain, it is less controversial than the Equality Act, it has a rich legal history, and it has no confining definitions about which sexual or gender minorities are included. Despite the inconsistent and mixed results, if the EEOC continues to put pressure on the courts to start using the expansive interpretation of ‘sex’, and if LGBT advocates start to become aware of the merits of Title VII, all LGBT or simply non-conforming Americans could finally get the federal protection they deserve. Title VII could not just protect LGBT employees, but anyone who falls within the broad ‘sex stereotyping’ approach; whether it be straight men who occasionally cross-dress but do not identify as trans*, asexuals, pansexuals, and more. Through federal legislation, Barron and Hebl’s domino strategy of reducing
Works cited
Althauser, Seth, and Sarah Greenberg. "FAQ: The Employment
Non-Discrimination Act." AmericanProgress.org. Center for American Progress, 19 July 2015. Web. 31 May 2016.
Andersen, Sasha. "That's What He Said: The Office, (Homo)Sexual Harassment, and Falling through the Cracks of Title VII." Ariz. St. LJ 47 (2015): 961.
Badgett, M. V., et al. "Bias in the workplace: Consistent evidence of sexual orientation and gender identity discrimination." The Williams Institute (2007).
Barron, Laura G., and Michelle Hebl. "The force of law: The effects of sexual orientation antidiscrimination legislation on interpersonal discrimination in employment." Psychology, Public Policy, and Law 19.2 (2013): 191.
Bird, Robert C. "More Than a Congressional Joke: A Fresh Look at the
Legislative History of Sex Discrimination of the 1964 Civil Rights Act." Wm. & Mary J. Women & L. 3 (1997): 137.
Braquet, Donna. "Past overdue! Protections for LGBT Americans in the workplace." College & Research Libraries News 76.6 (2015): 313-322.
Case, Mary Anne. "Legal Protections for the Personal Best of Each Employee: Title VII's Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA." Stan. L. Rev. 66 (2014): 1333.
Castle, Ryan. "Gay Accent, Gender, and Title VII Employment Discrimination, The." Seattle UL Rev. 36 (2012): 1943.
Clancy, Shawn. "Queer Truth: The Need to Update Title VII to Include Sexual Orientation." J. Legis. 37 (2011): 119.
"Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002)." Law.justia.com. Justia Law, n.d. Web. 30 May 2016.
Decoo, Ellen. "Changing Attitudes Toward Homosexuality in the United States from 1977 to 2012." (2014).
Dreiband, Eric S., and Brett Swearingen. The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964. N.p.: Jones Day, Apr. 2015. PDF.
"European Union Agency for Fundamental Rights." Fra.europa.eu. European Union Agency for Fundamental Rights, n.d. Web. 31 May 2016.
"Equality Maps." LGBTMap.org. Movement Advancement Project, n.d. Web. 31 May 2016.
Freeman, Jo. "How Sex Got Into Title VII: Persistent Opportunism as a Maker of Public Policy." Law & Ineq. 9 (1990): 163.
Gates, Trevor G. "Why employment discrimination matters: Well-being and the queer employee." Journal of Workplace Rights 16.1 (2011): 107-128.
"Gay and Lesbian Rights." Gallup.com. Gallup, n.d. Web. 30 May 2016.
Gay, Velma Cheri. "50 Years Later: Still Interpreting the Meaning of because of Sex within Title VII and Whether It Prohibits Sexual Orientation Discrimination." AFL Rev. 73 (2015): 61.
Herz, Zachary Robert. "Price's Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law." Yale Law Journal 124.2 (2014).
H.R.3185 - 114th Congress (2015-2016): Equality Act." H.R.3185. 114th Congress, n.d. Web. 17 Mar. 2016.
Hudson, David. "President Obama Signs a New Executive Order to Protect LGBT Workers." The White House. The White House, 21 July 2014. Web. 17 Mar. 2016.
Johnson, Chris. "Some LGBT Advocates Not on Board with Equality Act." Washington Blade. Washington Blade, 21 July 2015. Web. 17 May 2016.
King, Eden B., Clare Reilly, and Michelle Hebl. "The best of times, the worst of times: Exploring dual perspectives of “coming out” in the workplace." Group &
Organization Management (2008).
Kramer, Zachary A. "The new sex discrimination." Duke Law Journal 63.4 (2014).
Lorenz, Brandon. "Historic Marriage Equality Ruling Generates Momentum for New Non-Discrimination Law." HRC.org. Human Rights Campaign, 7 July 2015. Web. 30 May 2016.
Melling, Louise. "The Equality Act Is a Visionary Piece of Legislation -- and Way Overdue." ACLU.org. American Civil Liberties Union, 24 July 2015. Web. 01 June 2016.
Ocamb, Karen. "White House Still Reviewing the Equality Act." FrontiersMedia.com. Frontiers Media, 06 Oct. 2015. Web. 31 May 2016.
Ozeren, Emir. "Sexual orientation discrimination in the workplace: A systematic review of literature." Procedia-Social and Behavioral Sciences109 (2014): 1203-1215.
Parrish, Sonya K. "Plight of Same-Sex Harassment Victims under Title VII: Why Sexual Orientation Discrimination Should Be Recognized as a Form of Sex Stereotyping, The." Nev. LJ 4 (2003): 471.
Pizer, Jennifer C., et al. "Evidence of persistent and pervasive workplace discrimination against LGBT people: The need for federal legislation prohibiting discrimination and providing for equal employment benefits." Loy. LAL Rev. 45 (2011): 715.
Rabelo, Verónica Caridad, and Lilia M. Cortina. "Two sides of the same coin: Gender harassment and heterosexist harassment in LGBQ work lives." Law and human behavior 38.4 (2014): 378.
Reed, Alex. "Abandoning ENDA." Harv. J. on Legis. 51 (2014): 277.
Rotondo, Stephanie. "Employment Discrimination Against LGBT Persons." Geo. J. Gender & L. 16 (2015): 103.
Rudin, Joel. "Halfway out: Why America’s sexual minorities deserve better than the Employment Non-Discrimination Act." Journal of Workplace Rights 16.3-4 (2012): 337-351.
"Schroer v. Billington." Schroer v. Billington. AELE, n.d. Web. 24 Apr. 2016. Sears, Brad, and Christy Mallory. "Documented evidence of employment discrimination & its effects on LGBT people." (2011).
Sears, Brad, and Christy Mallory. "Employment Discrimination against LGBT People: Existence and Impact." Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide (2014).
Sears, Todd, Karen Sumberg, and Christina Fargnoli. The Power of "out" 2.0: LGBT in the Workplace. Center for Talent Innovation, 2013.
Socarides, Richard. "Corporate America’s Evolution on L.G.B.T. Rights." The New Yorker. The New Yorker, 27 Apr. 2015. Web. 30 May 2016.
Soucek, Brian. "Perceived Homosexuals: Looking Gay Enough for Title VII." American University Law Review 63 (2014).
Spero, Navah C. "Transgendered Plaintiffs in Title VII Suits: Why the Schroer v. Billington Approach Makes Sense." Conn. Pub. Int. LJ 9 (2009): 387.
Sung, William C. "Taking the Fight Back to Title VII: A Case for Redefining because of Sex to Include Gender Stereotypes, Sexual Orientation, and Gender Identity." S. Cal. L. Rev. 84 (2010): 487.
Swim, Janet K., Nicholas B. Pearson, and Kristen E. Johnston. "Daily encounters with heterosexism: A week in the life of lesbian, gay, and bisexual individuals." Journal of Homosexuality 53.4 (2007): 31-48.
"The Pregnancy Discrimination Act of 1978." The Pregnancy Discrimination Act. Equal Employment Opportunity Commission, n.d. Web. 30 May 2016.
Thompson, Erik S. "Compromising equality: an analysis of the religious exemption in the Employment Non-Discrimination Act and its impact on LGBT workers." BCJL & Soc. Just. 35 (2015): 285.
Tilcsik, Andras. "Pride and Prejudice: Employment Discrimination against Openly Gay Men in the United States." American Journal of Sociology 117.2 (2011): 586-626.
Vagins, Deborah J. Working in the shadows: Ending employment discrimination for LGBT Americans. American Civil Liberties Union, 2007.
Vitulli, Elias. "A defining moment in civil rights history? The employment non-discrimination act, trans-inclusion, and homonormativity." Sexuality Research and Social Policy 7.3 (2010): 155-167.
