Employment Law

For the LGBTQ America Today Encyclopedia, Greenwood Press (2008)

This area of law regulates the relations between employer and employee. It has great importance for LGBTQ people because rampant employment discrimination, combined with laws in many areas of the country that permit such discrimination, has made it difficult or impossible for them to be open about their identities, reinforcing social stigma.

Historically, U.S. employment law traces its roots to the breakup of early modern European feudal relations between lord and vassal, in which aristocrats owned lands to which vassals were attached. There was increased movement of the population into cities, as well as increased social mobility, and the domination of civil states by Christianity, with its severe disapproval of LGBTQ identities, began to wane. Individuals of various identities could now begin to form tacits groups, creating a group consciousness. At the same time, law began to recognize a relationship called “master and servant,” derived from the feudal property concepts of lord and vassal. Thus, it is not surprising that when the employer-employee relationship became the dominant form of work relations in the nineteenth century, the courts theorized employment law using property concepts, rather than contractual principles. Employers did not have contractual obligations to their workers, but could buy and sell them and their labor like property. They could hire or fire an employee for any reason or no reason at all. This “employment at will” doctrine was adopted from English law into U.S. law after the Revolution.

There are differing opinions about the utility of the “employment at will” rule. Some consider it a linchpin of liberty and/or modern capitalism because it permits employers freedom of association, and to hire and fire based on business efficiencies that are not easily quantified. Others, however, consider the “employment at will” rule a license to use prejudice and bias to discriminate based on characteristics viewed with social disfavor, such as sexual orientation and gender identity, as well as race, class, gender and other categories.

At the beginning of the twentieth century, African-Americans began to bring test cases in the courts in an attempts to limit the “employment at will” doctrine. Their appeals to principles of equality had little effect. After World War II, however, White political elites recognized that employment discrimination was not in their interests. Rather, social desegregation in all areas, including employment, would allow further industrialization of the South, provide credibility in the struggle against Communism, and reassure increasingly rebellious African-Americans, particularly returning veterans. One result was the Civil Rights Act of 1964, which prohibited employment discrimination, as well as other types of public discrimination, based on race, sex, national origin, and, later, religion. This “interest convergence” effect, which first operated against the interests of African-Americans, and then in their favor, had a similar effect on LGBTQ employees. When employees attempted to use the Civil Rights Act of 1964 to complain about sex discrimination based on sexual orientation and gender identity, the courts refused to entertain their claims on the ground that the Act was not written to address such discrimination.

In the 1970s, gay and lesbian advocacy groups, recognizing that the courts were deaf to appeal to equality principles, began to agitate for passage of laws similar to the Civil Rights Act of 1964. In 1973 Seattle passed its Fair Employment Practice Ordinance protecting gays, lesbians and bisexuals from discrimination at work, followed by Minneapolis in 1974, which included not only gays and lesbians, but transgender people as well. The terminology used in these laws was originally “sexual preference” and “affectational preference.” Many felt, however, that these incorrectly suggested that gay, lesbian and bisexual identities were capricious lifestyle choices. The terminology in later ordinances was changed to “sexual orientation,” which connotes a fixed identity. During the 1970s, several college towns enacted such legislation. In the 1980s and 1990s the movement spread to include most of America's large cities. While many of these protected sexual orientation only, a number of the also included gender identity. In the late 1990s and early 2000s, private employers began to include “sexual orientation” and “gender identity” in their equal employment opportunity and non-discrimination policies. There are, at the time of this writing, 26 states and over 300 cities and counties with statutes prohibiting discrimination on the basis of sexual orientation, as well as 9 states and 86 cities and counties with statutes explicitly prohibiting gender identity discrimination. There are also over 3,000 employers with policies prohibiting sexual orientation discrimination (including 435 of the Fortune 500 companies), and 435 employers gender identity discrimination (including 118 Fortune 500 companies).

Some US jurisdictions have passed laws prohibiting employment discrimination based on activities outside of work, based on appearance, or upon charactistics irrelevant to work performance. While these do not specifically mention sexual orientation or gender identity, they can be used to effectively protect LGBTQ persons from employment discrimination.

Although laws on the state level are a positive development, there is still no federal law protecting against employment discrimination based on sexual orientation or gender identity. There is some disagreement between advocates as to whether proposed legislation protecting employees from “sexual orientation” discrimination should also include “gender identity and expression.”  Those who say no argue that the categories are conceptually distinct, that it will be easier to pass a law based on sexual orientation alone, that laws based on gender identity will be easier to pass once discrimination on the basis of sexual orientation is prohibited, and that it is unfair to ask gays and lesbians to wait for rights until transgender people are sufficiently accepted by US society at some unspecified point in the distant future. Others argue, to the contrary,  that sexual orientation and gender identity discrimination are twin concepts that should be part of a single LGBT movement, that it is easier to educate the public at one time and to pass one law, rather than two, and that it is unfair to ask transgender people to take a back seat to gay and lesbian interests.  Although the proposed federal Employment Non-Discrimination Act has been introduced a number of times in the U.S. Congress with protection only for sexual orientation, a number of prominent gay and lesbian advocacy organizations have said they will not support the bill unless it is re-introduced with language prohibiting gender identity discrimination, and it is expected that such a bill, referencing both sexual orientation and gender identity will be introduced in 2007. 

The federal courts, meanwhile, have continued to deny employment discrimination claims by employees based on sexual orientation. In 1998, the United States Supreme Court held that sexual harassment claims, which had perviously only been permitted by an employee suing others of the opposite sex, would now be permitted in same sex cases. This has led to a split in the federal courts on the question of whether harassment based on actual or perceived sexual orientation may be the basis of a lawsuit. In the area of gender identity or expression, however, a major federal court, the Sixth Circuit Court of Appeals (covering Michigan, Kentucky, Ohio and Tennessee), as well as a number of lower federal courts, have recently ruled that the Civil Rights Act’s prohibition on sex discrimination does apply to gender identity. Because these issues have created a split between federal courts, both of these issues are likely to be decided by the U.S. Supreme Court at some point the next decade.

A number of developments contributed to the creation of an increasingly receptive U.S. audience for laws prohibiting sexual orientation and gender identity discrimination. The 1970s saw increaing suburbanization, and cities began to lose most of their tax base of large employers, as well as the talent pools that such employers require. The ability of some cities to regain this tax base in the 1990s has been linked to the rise of the “creative class,” referring to young, cosmopolitan professionals, which has itself been linked to the participation of people with LGBTQ identities. In addition, many private employers have created policies of their own in which they specifically pledge not to discriminate based on sexual orientation and gender identity, as well as race, ethnicity, religion and other identities. Most of the largest companies have such policies. This has been linked to the need for “diversity leadership” in the face of a perception of coming labor shortage, as demographics indicate a shrinking number of younger workers, an increase in the percentage of college-educated people of color in the workforce, and an increase in college-level jobs.

While these laws and policies are admirable and much-needed, there still remains much employment discrimination against LGBTQ people. Some legal theorists warn that “rights talk” can disguise rampant discrimination because there often is a disconnect between law on the books and the law in action. While law on the books creates the appearance that discrimination against LGBTQ people has been all but eliminated, the law in action often fails to protect discrimination against LGBTQ people because employers disguise their discriminatory actions by using performance standards as a pretext for discriminatory actions.

Jillian Todd Weiss

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Orren, Karen. 1991. Belated Feudalism: Labor, the Law, and Liberal Development in the United States. New York:Cambridge University Press

Greenberg, David. 1988. The Construction of Homosexuality. Chicago:University of Chicago Press