After Obergefell, Anti-Discrimination Becomes Activists’ New Target

In 2011, James Pittman, a gay man from Missouri, was fired from his position at Cook Paper Recycling Corporation. He sued the company, arguing he had been wrongfully terminated on the basis of his sexual orientation. In his lawsuit, he claimed that in seven years at the job, coworkers had directed obscene sexual comments toward him, taunted him about relationship struggles, and asked him if he had AIDS. The company’s president denied that Pittman had ever been harassed at work or that he had been terminated due to his sexuality.

Late last month, an appeals court in Missouri dismissed the case by a 2-1 vote against Pittman. However, the reasoning behind the dismissal was not a lack of evidence; rather, the court stated that it couldn’t hear the case because even if Cook Paper had fired Pittman because he was gay, nothing illegal would have occurred. Missouri’s state statutes include a law banning workplace discrimination on the basis of race, color, national origin, ancestry, sex, religion, age, familial status, or disability. Pittman tried to argue that his case violated the provision protecting workers from sex-based discrimination, but the court found that the provision did not apply to sexual orientation. One judge who voted to dismiss the case wrote, “No matter how compelling Pittman’s argument may be and no matter how sympathetic this court or the trial court may be to Pittman’s situation, we are bound by the state of the law as it currently exists.”

When the Supreme Court handed down the ­Obergefell v. Hodges decision this past summer and imposed marriage equality across the country, LGBTQ+ individuals and allies everywhere celebrated – and rightfully so. But the ruling may not have been the end goal that some initially considered it to be; instead, achieving marriage equality only removed one brick from the wall of inequities facing LGBTQ+ Americans. Discrimination remains a massive obstacle facing LGBTQ+ people everyday, and until we make a policy change, hundreds of thousands of citizens will be at risk of unemployment.

Pittman is far from an anomaly when it comes to LGBTQ+ individuals and workplace discrimination. No explicit, fully-inclusive, federal, anti-discrimination protections for LGBTQ+ people in the employment sector exist, as the Civil Rights Act of 1964 does not mention sexual orientation or gender identity. This leaves the matter up to state and local jurisdictions to settle, and the decisions have been varied and slow-coming. In total, 28 states offer no statewide workplace protections for LGBTQ+ citizens, and three more have outlawed discrimination on the basis of sexuality but not gender identity. The Movement Advancement Project found in a recent study that almost half of the US population lives in areas without these laws. These oversights are far from hypothetical, either; the Human Rights Campaign determined that a staggering 47 percent of LGBTQ+ Americans have experienced discrimination at work. Similarly, the National Transgender Discrimination Survey revealed that 71 percent of transgender Americans hide their identities out of fear of bigotry. Even after the Supreme Court ruling in favor of gay marriage, LGBTQ+ employment discrimination stretches far and wide across the nation.

"The Human Rights Campaign determined that a staggering 47 percent of LGBTQ+ Americans have experienced discrimination at work. Similarly, the National Transgender Discrimination Survey revealed that 71 percent of transgender Americans hide their identities out of fear of bigotry."

Several legal and legislative avenues allow advocates to pursue LGBTQ+ employment equality. In some cities, such as Dallas and Jacksonville, activists are pushing for local ordinances. Plaintiffs like James Pittman continue to challenge state laws through the justice system, and some, such as former Federal Aviation Administration (FAA) employee David Baldwin, are taking the fight to federal court. Several members of Congress are urging action, as well; in July, Rep. David Cicilline (D-RI) and Sen. Jeff Merkley (D-OR) introduced the Equality Act to Congress, with the intention of amending the wording of federal civil rights legislation to include the nation’s LGBTQ+ citizens.

However, recent efforts to instate LGBTQ+ anti-discrimination laws have experienced mixed results. Late in October, a House committee blocked a potential vote on the Equality Act, though just two weeks later President Obama officially endorsed the bill. Earlier this month, Houston voters rejected an LGBTQ+ anti-discrimination bill, largely due to objections that the law would allow transgender individuals to use public restrooms aligned with their gender identity. The law, if implemented, would have forbidden discrimination throughout the city based on any of 15 listed self-identifiers, with the inclusions of gender identity and sexual orientation being the most groundbreaking. The Pittman decision was one of many disheartening losses for LGBTQ+ campaigners, but the sympathetic language used by judges in that particular case suggests that they too were frustrated with the current law.

The most promising sign that a national mandate banning LGBTQ+ discrimination is on the horizon comes from the Equal Employment Opportunity Commission (EEOC). The 2012 Macy v. Holder suit centered around Mia Macy, a transgender woman who was denied a position at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives after publicly stating her intentions to transition. The EEOC determined that gender discrimination against transgender employees is illegal under the Civil Rights Act’s sex discrimination portion, establishing workplace safeguards for transgender federal workers for the first time. The commission came to a similar conclusion in the case of David Baldwin, who asserted that the FAA deprived him of a promotion and put him in a hostile work environment. They proposed that, since sexual orientation is related to gender and gender discrimination is outlawed by the Civil Rights Act, discrimination based on sexuality is also illegal. Unfortunately, since these decisions came from the EEOC and not the Supreme Court, they only apply to federal employers and employees. Still, these rulings have founded a precedent that will be difficult for other courts to contradict, and if Baldwin’s case reaches the Supreme Court, there’s potential for a swift nationwide change in LGBTQ+ anti-discrimination policy.

Combating LGBTQ+ discrimination has begun to emerge as one of the principal goals of queer activists throughout the United States. It’s a logical procession from the marriage equality battle, and many will justifiably say that change is long overdue. While advocates have witnessed several recent setbacks in their campaign, the positive signs that change is on the horizon outweigh these heavily. The LGBTQ+ community in this country has proven its resolve time and time again, and there’s no chance they give up this fight until they receive the full legal protections they deserve.

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About the Author

Michael O'Neill '19 is a Staff Writer for the Brown Political Review.

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