Angela Giampolo of Giampolo Law Group in Philadelphia ()
In April 2017, for the first time ever, a full panel of circuit court judges in the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled that discrimination against employees for sexual orientation was against Title VII of the Civil Rights Act of 1964, stating that discrimination based on orientation falls under the discrimination based on sex. The opinion reversed a lower court decision to throw out the case of an Indiana professor fired for being a lesbian, and set federal level legal precedent that sex discrimination includes sexual orientation.
That decision has resulted in a strange situation in the case of Donald Zarda, who in 2010 sued the Long Island-based sky diving school from which he was fired for being gay. Zarda’s case has become a source of debate before a panel of 13 judges in Manhattan’s appellate court, where the federal Equal Employment Opportunity Commission (EEOC) has sided with the plaintiff that yes, Zarda has been discriminated against and that Title VII includes sexual orientation as a protected class beneath the banner of sex discrimination. On the other side of the argument is the Department of Justice, also a federal agency, who are saying no, sex discrimination does not include sexual orientation in its protections as stated in Title VII.
To have two federal departments at odds with each other on the same case brings, as Judge Rosemary Pooler stated, a level of awkwardness to the proceedings. What is simply awkward for people involved in the case is downright dangerous for LGBTQ people should the court side with the Department of Justice against Zarda.
Since 2002, Title VII of the Civil Rights Act of 1964 has been interpreted by lower courts as inclusive of protections for LGBTQ people, and that firing someone for being gay is discrimination. The presidential administrations between 2002 and now have held the position that sexual orientation is protected under sex discrimination, save one—the Trump administration. Attorney General Jeff Sessions has filed a multitude of amicus briefs arguing against preserving LGBTQ rights, including the Colorado case of the baker who owns Masterpiece Cake Shop and was found guilty of violating the state’s Anti-Discrimination Act by refusing to bake cakes for same-sex weddings, despite having no such qualms making cakes for opposite-sex weddings.
When those cases are considered together, the position the presidential administration has taken against LGBTQ protections paints a disturbing picture for LGBTQ Americans. It is still entirely legal to fire someone based on sexual orientation in 28 states. While marriage equality is the law in every state, a legally married same-sex couple attempting to add their spouse to their health insurance benefits through their employer risks being fired. If a same-sex couple posts on social media about their life—be it wedding photos, vacations taken together, anniversaries or anything related to their relationship—in 28 states, they could return to work the next day to find they no longer have a job.
Employees concerned about losing their jobs are forced into the closet at work, where 80 percent of their non-LGBTQ counterparts report having conversations about their social lives, home lives, relationships and dating at least weekly if not daily. The pressures on LGBTQ people to remain tight-lipped about their lives beyond the workplace lead to an increase in job dissatisfaction, being forced to tolerate negative and discriminatory language at work and an overall disconnection from the people with whom they spend the majority of every day. Further, fear of being denied promotion opportunities, regular pay increases and recognition because they are LGBTQ serves to keep people in the closet, forcing them to choose between success at work and the freedom to be who
That’s exactly the kind of mentality rampant in the military before the repeal of Don’t Ask, Don’t Tell laws in 2011.
Working side-by-side every day with the same people, workers forge bonds over water-cooler type topics such as weekend plans and family events. For LGBTQ workers, the choice is to outright lie about how and with whom they spend their time, or remain silent. This leads their colleagues to believe they’re hiding something, or are distant and reluctant to forge any real depth to their working relationships, which puts them at a disadvantage in terms of advancement opportunities. “Not a team player,” or, “Doesn’t really contribute,” can be common complaints when an LGBTQ employee isn’t forthcoming about who they really are, so even attempting to find safety in secrecy, LGBTQ employees pay the price.
This feeling is being reinforced by the current presidential administration, especially when news stories are released stating Trump backs a new ban on transgender service members in the military, and that the Civil Rights Act of 1964 does not include sexual orientation in its protections. As a nation, we have made tremendous strides in the last decade with regard to LGBTQ equality, and this roll-back of federal protections—even if they’re not laws as of yet, such as the EEOC definition of sex discrimination including sexual orientation—threatens the livelihoods of all LGBTQ Americans.
Cases like those brought by Donald Zarda and Kimberly Hively, who’ve sued their former employers for wrongful termination due to their orientations, or the anti-discrimination suit against Jack Philips, the Colorado cake baker, are vital to the forward momentum the LGBTQ equality movement has worked so hard to build. But if the federal government gives contradictory guidance from the current presidential administration in defiance of the administrations of the past, the lives and livelihoods of an entire demographic of Americans hangs in the balance. With such political heavyweights as the attorney general, the Department of Justice, the solicitor general—who has chosen to defend the actions of the cake baker rather than condemn them—and even the president himself weighing in on the wrong side of history, legal experts working toward equality for all have no choice but to take these actions as a direct and willful attack on the LGBTQ community, who are then forced to rely on their employers to do the right thing. In 28 states, those employers don’t have to. And so begins the corporate version of Don’t Ask, Don’t Tell. •