This appeared in Saturday’s Washington Post.Is it already illegal to fire employees because of their sexual orientation? Or should Congress act to make it illegal? We would suggest: Both.
The U.S. Court of Appeals for the 2nd Circuit ruled this week that workplace discrimination against LGBT people is illegal under existing law, Title VII of the 1964 Civil Rights Act, which bans most employers from discriminating against their workers based on “race, color, religion, sex, or national origin.” The court found that “sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
Courts have devised a simple test for rooting out illegal sex discrimination: Put a person of the opposite gender in the same position, and see if the outcome would have changed. “In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” the 2nd Circuit found. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”
Judges have long held that Title VII covers not just the principal evils the law sought to combat but “reasonably comparable evils,” as well. Thus, it prohibits workplace discrimination based not only on gender per se but also based on employees’ non-conformance to gender norms, for example.
A boss can’t fire a female employee because she refuses to wear makeup and jewelry or has a masculine look. As the U.S. Court of Appeals for the 7th Circuit concluded in its own ruling on sexual-orientation discrimination, “all gay, lesbian and bisexual persons fail to comply with the sine qua non of gender stereotypes — that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.”
The strongest counterargument is that lawmakers in 1964 would not have understood Title VII to bar sexual-orientation discrimination. But neither would they have immediately thought it covered discrimination because a woman failed to wear makeup, yet courts have easily discerned those protections in the law’s wide language.
That said, Congress, not the judiciary, would ideally settle this question, writing explicitly into the law workplace protections for LGBT people. This would leave no doubt about the law’s meaning. It would also attach more democratic legitimacy to the shift. Many states — including some deep-red ones — have already imposed within their borders anti-discrimination policies that include sexual orientation. Congress has bills ready on the shelf that would nationalize these protections. If President Donald Trump meant any of the things he said about wanting to protect LGBT people, he would push Congress to extend these protections from coast to coast, instead of allowing lawmakers to punt their work to the courts once again.