Jeffrey Brodin Article

Historic Civil Rights Act offers new hope for fighting discrimination based on sexual orientation, gender identity

Historic Civil Rights Act offers new hope for fighting discrimination based on sexual orientation, gender identity

July 12 marks the 50th anniversary of the signing of the Civil Rights Act of 1964, one of the most important moments for civil rights in the history of the United States. Also known as Title VII, the act prohibits discrimination against individuals on the basis of race, color, religion, sex and national origin.

Are there civil rights protections for the LGBT community?

While Phoenix, Tempe and Tucson have passed protections against discrimination based on sexual orientation and gender identity, there is no Arizona or federal law providing such protection.


The Employment Non-Discrimination Act (ENDA), which would amend Title VII to include protections against discrimination based upon sexual orientation and gender identity, was first introduced to protect "affectional or sexual preference" in 1975. ENDA passed in the current session of the U.S. Senate, but is mired in the partisan politics of the House.


The Equal Employment Opportunity Commission (EEOC) and a U.S. District Court have breathed new life into a 25-year-old U.S. Supreme Court case, relying upon it for the principle that Title VII in its current form already protects individuals against discrimination based upon sexual orientation and gender identity.

The EEOC recently announced that Title VII prohibits discrimination on the basis of sexual orientation and gender identity on the basis that such discrimination is rooted in the sex stereotyping prohibited by the Price Waterhouse decision. The EEOC Strategic Enforcement Plan for 2013-2016 lists "coverage of lesbian, gay, bisexual and transgender individuals under Title VII" as one of its top six national enforcement priorities.

Are members of the LGBT community being discriminated against?

In a study by the Williams Institute, 68 percent of gay, lesbian and bisexual individuals reported having experienced employment discrimination. Transgender individuals experience unemployment at twice the rate of the general population, and 50 percent report having been harassed at work.

What case law outlines the EEOC’s position?

In the 1999 case Price Waterhouse v. Hopkins, Ann Hopkins sued Price Waterhouse for discrimination based on sex, in violation of Title VII. Hopkins was a senior manager who was up for partner in the accounting firm. She was denied partnership on the basis that she was considered to be too "macho." The firm advised her that she could improve her chances for partnership if she were "to take a course at charm school, walk more femininely, talk more femininely, wear make-up, have her hair styled and wear jewelry."

The Supreme Court ruled that it did not "require expertise in psychology to know that, if an employee's flawed ‘interpersonal skills' can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex and not her interpersonal skills that has drawn the criticism."

The court continued that "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex,' Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

A U.S. District Court recently agreed with this EEOC position in a case involving claims that a Library of Congress employee, Peter TerVeer, faced discrimination after his boss found out that he was gay. The Library of Congress filed a motion to dismiss TerVeer's claims, arguing that Title VII does not cover claims of discrimination based upon sexual orientation. The judge denied the motion, ruling that TerVeer stated a valid claim and if he could prove the facts alleged in his complaint, he could succeed in his lawsuit based on his Title VII claim. TerVeer's lawsuit claims that his boss created a "hostile environment in which he imposed his religion and sexual stereotypes" on TerVeer.

So what does this mean?

 If you believe you are one of the 68 percent of gay, lesbian or bisexual Americans who have been discriminated against or harassed at work based upon your sexual orientation, or on the basis of your gender identity, you may have a claim under Title VII. Consult with a knowledgeable employment lawyer to see if you may have a claim, or visit the local office of the EEOC. If you own or operate a business, you should consult with your employment lawyer about updating policies and providing training to your management staff.  

Contributing Attorney Writer: Jeff Brodin is the founder of Brodin HR Law.   







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