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Employment Discrimination

Updated: Feb 1


What is Employment Discrimination?


According to the National LGBTQ Workers Center, “ 4.5% of the population identifies as lesbian, gay, bisexual, or transgender” meaning that this legislation has the possibility of affecting nearly 14,769,000 people nationwide. (Image Source: Drew Angerer / Getty Images)
According to the National LGBTQ Workers Center, “ 4.5% of the population identifies as lesbian, gay, bisexual, or transgender” meaning that this legislation has the possibility of affecting nearly 14,769,000 people nationwide. (Image Source: Drew Angerer / Getty Images)

The U.S. Equal Employment Opportunity Commission states that employment discrimination involves unequal treatment, harassment, denial of a reasonable workplace change, improper questions regarding disclosure, or retaliation on the basis of “race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.” While it may seem like a victory that should’ve been granted years ago, it was just as recently as June 2020 that the U.S. Supreme Court ruled that the 1964 Civil Rights Act protects employees who identify as part of the LGBTQ+ community from discrimination based on sex. The 6-3 ruling was an enormous victory for the LGBTQ community, especially in light of the presidential administration, led by President Donald Trump, siding with employers who were said to be discriminating against employees due to their identity. This win comes after a long and hard battle of employment discrimination that has affected the LGBTQ+ community for years. Historically, homosexuality, along with other sexual and gender identities, has been used as justification for firing individuals and discriminating against them in the hiring process by giving the job to another candidate instead, despite other qualifications. The list of instances where individuals were discriminated against in the workforce solely due to their LGBTQ+ identity is a long and tiring one involving a plethora of court cases and governmental acts. The LGBTQ+ community has continuously fought for years for protection in the workplace, and even in light of recent victories, the fight is far from over.


Timeline


April 1953: President Dwight D. Eisenhower passed an executive order stating that gay people were banned from holding federal positions. Under this order, homosexuality was placed under the category of sexual perversion. Eisenhower’s executive order was in place for nearly 20 years.

July 1975: A bill was introduced by the federal government that would prohibit any form of discrimination based on sexual orientation. This was the first bill of its kind introduced. Unfortunately, it was never considered by the judiciary committee. However, homosexual workers were no longer instantly declined from federal positions.


Don't Ask, Don't Tell was repealed in 2011 under President Barack Obama (Image Source: Justin Sullivan/Getty Images)
Don't Ask, Don't Tell was repealed in 2011 under President Barack Obama (Image Source: Justin Sullivan/Getty Images)

February 1994: Clinton passed the DADT (Don’t Ask, Don’t Tell) Act, which allowed gay men and women to remain in the military as long as they kept their sexuality hidden. Despite its intentions to protect, tens of thousands lost their positions.


September 2011: President Barack Obama took action to repeal DADT (Don’t Ask, Don’t Tell). While its repeal was beneficial, close to 12,000 individuals who were in the military were discharged after they decided not to suppress and hide their sexuality. March 2020: The White House staff passed a policy prohibiting transgender individuals from serving in the U.S. Military. Their argument on the permissibility of this policy was that the treatments transgender individuals receive, such as hormone therapy, may hinder their ability to serve and impact their readiness and ability to complete their duties. June 2020: The U.S. Supreme Court ruled that the 1964 Civil Rights Act protects employees who identify as part of the LGBTQ+ community from discrimination based on sex. The ruling won with a 6-3 majority to protect LGBTQ+ individuals in the workplace. The ruling of Bostock v Clayton County was, therefore, a huge win as the LGBTQ+ community’s employment rights are now included in the protections of the Civil Rights Act of 1964, which also protects people based on race, color, religion, sex, and ethnicity.


Gerald Bostock standing in front of a podium with many mics
Gerald Bostock (Source: AFP via Getty Images)

Bostock was a gay man working in Clayton County. He received great reviews and evaluations as a child welfare service coordinator. After years of working for the company, Bostock became involved in a gay softball league that was looked down upon by his employees. While in a meeting, a colleague of his mentioned sexuality in front of the supervisor of the company. Shortly after, Bostock received word from the county that he had been fired for “conduct unbecoming of its employees.” Bostock filed a charge with the Equal Employment Opportunity Committee (EEOC), claiming that he faced discrimination from the county based on his sexual orientation. After appealing through multiple courts, his case was finally heard by the Supreme Court, which ruled in Bostock's favor.


January 2021: On the 21st of January, President Biden passed an executive order titled “Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation.” This executive order prohibits employers from discriminating against current or potential employees based on sexual or gender identity. The president explains that children should have access to bathrooms and sports regardless of identity, and adults should feel confident that they will not lose their job due to prejudice.


The foundation of this order is based on the Constitution and backed by Bostock vs Clayton, in which “the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.” This order strengthened protections for the LGBTQ+ community in the workplace and other environments.


President Biden signing executive order to strengthen protections for LGBTQ+ employees against work place discrimination. (Image Source: The Washington Post)
President Biden signing executive order to strengthen protections for LGBTQ+ employees against work place discrimination. (Image Source: The Washington Post)

Only a few days later, on January 25, 2021, President Biden signed an executive order (Enabling All Qualified Americans to Serve Their Country in Uniform), which reversed Trump’s order banning transgender individuals from serving in the military. President Biden writes, “It is my conviction as Commander in Chief of the

Armed Forces that gender identity should not be a bar to military service,” and emphasizes that transgender individuals hold no negative impact on the effectiveness of the U.S. armed forces.


Legacy

While the Supreme Court convenes inside to discuss if sexuality and gender identity are protected from employment discrimination, a rally forms outside. (Image Source: Bill Clark/CQ-Roll Call, Inc / Getty Images)
While the Supreme Court convenes inside to discuss if sexuality and gender identity are protected from employment discrimination, a rally forms outside. (Image Source: Bill Clark/CQ-Roll Call, Inc / Getty Images)

While this timeline comes nowhere near to documenting the vast number of individuals who have experienced employment discrimination, it highlights some major instances and decisions.


Not long ago, employment discrimination based on sexual orientation or gender identity was prohibited and recognized by the Supreme Court. However, this does not mean the struggle is over or that these biases no longer exist.


 

References


Bostock v. Clayton County. (n.d.). Oyez. Retrieved November 16, 2021, from


Dishman, L. (2018, June 11). A brief (and depressing) history of LGBT workers’ rights. Fast Company; Fast Company. https://www.fastcompany.com/40582182/a-brief-and-depressing-history-of-lgbt-workers-rights

Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform | The White House. (2021, January 25). The White House; The White House. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/25/executive-order-on-enabling-all-qualified-americans-to-serve-their-country-in-uniform/


Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation | The White House. (2021, January 21). The White House; The White House. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/


Supreme Court Delivers Major Victory To LGBTQ Employees. (2020, June 15). NPR.org.

What is Employment Discrimination? | U.S. Equal Employment Opportunity Commission. (2021). Eeoc.gov. https://www.eeoc.gov/youth/what-employment-discrimination


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