Sexual Orientation, the Time Has Come
Sexual Orientation, the Time Has Come Darren Sutphen HRM-320 Employment Law Professor Joy Bruno Sexual Orientation, the Time Has Come Our founders of this great nation with one simple phrase, started this country on a journey unlike any nation has ever embarked upon. As written it was an epiphany of law that would ultimately change the world. All men are created equal. What an amazing statement. Through their wisdom Americans have continued to strive to hold true to this ideal for over two hundred years.
Through our history Americans have fought toward this goal and through this debate have ended slavery, gave women the right to vote, and integrated our schools and much more. Today the struggle continues. The Civil Rights Act of 1964 was key piece of legislation in our nation’s quest. It put into law the integration of schools, outlawed segregation in all public places and it also banned discriminatory practices in employment situations and it is here that fight lives on. Title VII of the Civil Rights Act prohibits discrimination based on religion, race, color, sex, and national origin in the workplace.
In other words businesses cannot fire someone simply because there black, or because there from Pakistan. Employers can’t pass over a woman for a promotion just because she’s a woman. A Catholic businessman can’t discriminate against a Jewish applicant, but protection for gay and lesbian citizens as they endeavor to advance in the workplace is lacking under Title VII. The courts have maintained strict adherence to the determination that discrimination based on sexual orientation is not actionable under Title VII. For example, in the case of B. DeSantis v.
Pacific Telephone & Telegraph Co. , the plaintiffs DeSantis, Boyle, and Simard all men alleged that they were discriminated against because of their homosexuality. DeSantis claimed he was not hired by Pacific Telephone & Telegraph because he was gay, and, Boyle was forced to quit after only three month of employment due to continuous harassment from co-workers and a lack of response from supervisors to his complaints of harassing behavior. The third plaintiff Simard was forced to quit after enduring four years of harassment by both coworkers and management.
They first filed complaints with the EEOC (Equal Employment Opportunity Commission) but were rejected by the EEOC for lack of jurisdiction. The Commission maintained that sexual orientation is not a protected class under Title VII therefore they had no authority to act in the matter. The plaintiffs, DeSantis, Boyle, and Simard, filed a complaint in district court seeking declaratory, injective, and monetary relief under Title VII. The district court dismissed the complaint refusing to compel the EEOC to alter its interpretation of Title VII. Some creative attorneys have tried to use gender discrimination as a basis for protection.
Sex is a protected class under Title VII. Some gay and lesbian people have filed suit alleging they were discriminated against for not being man enough or acting enough like a woman. In the landmark case Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) the plaintiff Ann Hopkins was employed as a senior manager and had been proposed for partnership, but was eventually denied for reasons other than job performance. Ms Hopkins had in the year prior to being proposed for partner, had been a key contributor in landing a $25 million account with the Department of State.
Hopkins was often praised by coworkers and clients as an outstanding professional with strong character. Ms Hopkins had been extremely successful senior manager and often worked at the partner level. Internal memos relating to the denial of partnership to Ms. Hopkins gave reasons such Ms. Hopkins was too “macho” and that she overcompensated for being a woman. In a final statement given to Ms Hopkins as the reason for the board’s decision and how to improve her chances next time, Thomas Beyer advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry. (618 F. Supp. , at 1117). The district courts found that Price Waterhouse had discriminated against Ms Hopkins on the basis gender discrimination and the decision was upheld upon appeal. Though this decision provides a lope hole and some protection to homosexuals who have been deemed not enough like their genders stereotype, it still does not provide the protection needed for all gay and lesbians to have equal treatment under the law The struggle for protection for the gay and lesbian community has been an ongoing struggle for the last 30 plus years.
One of the first attempts was introduced in 1975 by Congresswoman Bella Abzug (D-NY) who wrote HR 166. House Resolution 166 was an amendment to the Civil Rights Act of 1964 that would prohibit discrimination on the basis of affection or sexual orientation, sex, or marital status in public accommodations, public education, equal employment opportunities, the sale, rental and financing of housing, and education programs which receive Federal financial assistance.
Congresswoman Bella Abzug was able to garner 4 cosponsors and it was referred to the Judiciary Committee. But this piece of legislation would meet the same end as many that would follow, HR 166 was never even considered by the Judiciary Committee and went no further. Resolution after resolution like S 2081 which was introduced in by Senator Paul Tsongas (D-MA) 1979 that would have prohibited employment discrimination on the basis of sexual orientation, never made it out of the Senate Labor and Human Resources Committee.
This is a pattern that would continue for another twenty years. It was not until 1994 when the late Senator Ted Kennedy first introduced S 2238 ENDA (Employment Non-Discrimination Act) that the prospect of protection had any real hope. ENDA was referred to the Senate Labor and Human Resources Committee. The committee held the first public hearing on the issue but to no avail. Senator Kennedy reintroduced the ENDA legislation in 1995. ENDA was brought before the Senate for a vote on September 10, 1996 but was defeated by the slimmest of margins 50-49.
The future of protection for sexual orientations under the law has been a hotly contested, politically charged debate in the House and Senate for over a decade. Sense its introduction in 1995 by Senator Kennedy, ENDA (Employment Nondiscrimination Act) has had at least seven different versions that have all failed to become law. The current version of ENDA was introduced by Rep. Barney Frank (D-MA) on June 24Th 2009 and would make employment discrimination based sexual orientation and gender identity illegal.
The current bill has 114 co-sponsors and due to the change in political environment this bill has an actual opportunity to finally become law. Though the federal government has struggled to adopt legislation over the past 30 years, currently 17 states and over 100 municipalities across the country already provide sexual orientation protection through their own legislation. The argument on this topic has raged for years, far too long if you ask some, but America has had a long way to go. At first sexual orientation wasn’t even in our vernacular, let alone something a person ould actually fight over in court. Unlike all the protected classes in the great Civil Rights Act of 1964 a person’s sexual orientation first had to be something that could be talked about in public. In the last 40 plus years our country has had to put aside old biases and misconceptions and get to know our fellow citizens. Although this process has been a hard battle for this group of American and many have endured countless injustices, this is the American way. Not the one that would be used on marketing materials but more like were the rubber meets the road.
Our fore fathers bestowed upon us an amazing gift. They gave us a political system that has the ability to change as its people see the need. Gay and lesbians Americans have had to find their voice within our political system. Now there voice is growing and our system is listening. This group of citizens now has the chance to help all Americans, as this country continues on this unprecedented journey launched by that simple phrase all men are created equal. Gay and lesbians fight for equality is but another battle in this countries continuing struggle to form a more perfect union.
Author’s Reflection. As I conducted the research to write this paper two things surprised me. First, was that there is no national protection for guy and lesbian employees. I would have thought that in this “enlightened” age that there would have been some legislation that would offer shelter from bigotry in the work place. Gay and lesbian people have legislation that protects from hate crimes, which should in my mind make the need for protection in the workplace not only necessary but frankly quite obvious. The next thing that caught me off guard was how long the fight in congress has gone on.
Almost every Congress sense 1975 has proposed some form of protection but only one time has the legislation even made out of committee and been put to a vote. Capitalism depends on a qualified, talented workforce, and to arbitrarily set aside groups of people for reasons of prejudice is counterproductive to our society. Could you imagine if GE decided not to hire the next Einstein because he’s was black, or if AT&T fired the next Alexander Graham Bell because he was gay? What has society already lost or what type setbacks have we endured due to prejudice between people?
Ultimately we only hurt ourselves when as a nation we allow discrimination to exist. Americans have the ability and I believe the responsibility to continue to fight discrimination in any form. United we stand, so let us all stand united against all discrimination. America needs all its best and brightest citizens to continue this great American experiment in democracy. Reference . Moran J J (2008) Sexual Orientation (pp. 317-336) Pearson Prentice Hall Nolo, 2008 Sexual Orientation Discrimination in the Workplace, Find Law, Retrieved October 05th 2009 from http://smallbusiness. indlaw. com/employment-employer/employment-employer-discrimination/employment-employer-discrimination-type-orientation-overview. html Thomas, C, Existing laws are not enough) Library of Congress, Thomas Home, Committee reports, Retrieved October 09th 2009 from http://www. thomas. gov/cgi-bin/cpquery/? &sid=cp107X5NC4&refer=&r_n=sr341. 107&db_id=107&item=&sel=TOC_36098& Justice Brennan, (1989) Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) Find law, Supreme Court. Retrieved October 10th 2009 from http://caselaw. lp. findlaw. om/scripts/getcase. pl? court=US&vol=490&invol=228 Thomas, C, Committee action including legislative history and votes (2007) Library of Congress, Thomas Home, Committee reports, Retrieved October 09th 2009 from http://www. thomas. gov/cgi-bin/cpquery/? &sid=cp110O4coM&refer=&r_n=hr406p1. 110&db_id=110&item=&sel=TOC_3501& Vanasco, J (06/25/2009) New employment bill include sexual orientation, and gender. 365 Gay Retrieved October 10th 2009 from http://www. 365gay. com/news/new-employment-bill-includes-sexual-orientation-and-gender/