Employment Discrimination - Congress Considers Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation and Gender Identity

Harvard Law Review, May 2010 | Go to article overview

Employment Discrimination - Congress Considers Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation and Gender Identity


Section 5 of the Fourteenth Amendment (1) empowers Congress to enact legislation that "deters or remedies constitutional violations." (2) Recently, Congress has begun to consider exercising its section 5 power to pass a piece of antidiscrimination legislation. If enacted into law, the Employment Nondiscrimination Act of 2009 (3) (ENDA) would prohibit the states, as well as other employers, from discriminating against their employees on the basis of sexual orientation and gender identity. (4) If the Supreme Court, in turn, takes a case that requires it to determine whether sexual orientation or gender identity is a suspect classification, it should consider ENDA, if enacted into law, as one factor that weighs in favor of an affirmative answer.

Although no federal statute expressly proscribes employment discrimination on the basis of sexual orientation or gender identity, over the last several decades lesbian, gay, bisexual, and transgender (LGBT) employees have litigated claims of employment discrimination in the federal courts. (5) These claims have been premised on the idea that, in light of several antidiscrimination principles, sexual orientation and gender identity discrimination are both forms of sex discrimination and thus prohibited under Title VII of the Civil Rights Act of 1964. (6) First, in the analogous context of race-based employment discrimination, courts have concluded that race discrimination occurs when an employer takes an adverse action against an employee because it objects to the race of a person with whom the employee associates, intimately or otherwise. (7) Given that the race and sex discrimination provisions of Title VII are to be construed in the same fashion, (8) the proscription of associational discrimination can fairly be said to apply in the latter context--that is, an employer should not be allowed to discriminate against an employee simply because it believes that the employee seeks intimate relationships with individuals of the "wrong" sex. (9) Sexual orientation discrimination can thus be viewed as sex-based associational discrimination and prohibited under Title VII.

Second, transgender discrimination can also be said to be a form of sex discrimination. As one court has explained, it is indisputable that, in the analogous context of religious discrimination, an employer who terminates an employee because she has converted or intends to convert from one religion to another has run afoul of Title VII's prohibition on religious discrimination. (10) In light of this bar against transitional discrimination, (11) the sex discrimination provision of Title VII can also fairly be said to prohibit an employer from taking an adverse employment action against an employee simply because it objects to the fact that the employee has transitioned or intends to transition from one gender to another. (12)

Finally, the Supreme Court held in Price Waterhouse v. Hopkins (13) that the sex discrimination provision of Title VII prohibits employers from discriminating against employees who do not conform to gender stereotypes. (14) LGB individuals, by definition, do not conform to the stereotype that biological males are sexually attracted only to biological females and vice versa.15 And transgender individuals, by definition, do not conform to the stereotype that biological males perceive or present themselves as male or that biological females perceive or present themselves as female. (16) When employers discriminate against LGBT individuals because of their sexual orientation or gender identity, the employers can be said to be discriminating against LGBT individuals because of their nonconformity with these gender stereotypes.

Although the sex discrimination provision of Title VII can thus be interpreted to prohibit sexual orientation and transgender discrimination, the lower federal courts have largely been reluctant to do so. Rather than applying the principles of associational and transitional discrimination to the sex discrimination provision of Title VII, courts have pointed to the absence of relevant and affirmative congressional intent and concluded that Title VII does not prohibit discrimination on the basis of either sexual orientation (17) or gender identity. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Employment Discrimination - Congress Considers Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation and Gender Identity
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.