Developing Law on LGBT Rights in the Workplace American Bar Association, Labor and Employment Law Section: National Conference on Equal Employment Opportunity Law 2015 Lisa J. Banks1 Matthew S. Stiff Sam Kramer KATZ, MARSHALL & BANKS, LLP 1718 Connecticut Ave., N.W. Sixth Floor Washington, D.C. 20009 (202) 299-1140 www.kmblegal.com 1 Lisa J. Banks is a founding partner with Katz, Marshall & Banks, LLP, a civil rights firm based in Washington, D.C., that specializes in the representation of plaintiffs in employment law, whistleblower, civil rights and civil liberties matters. Matthew S. Stiff is a partner with the Firm. Sam Kramer is an associate with the firm. © Copyright 2015, Lisa J. Banks, Katz, Marshall & Banks, LLP, Washington, D.C. TABLE OF CONTENTS I. Introduction ........................................................................................................................... 3 II. LGBT Demographics and the Pervasiveness of LGBT Workplace Discrimination ....... 3 III. Constitutional Protections for LGBT Employees ............................................................... 4 A. Romer v. Evans ............................................................................................................... 5 B. Lawrence v. Texas .......................................................................................................... 7 C. United States v. Windsor ............................................................................................... 9 D. Obergefell v. Hodges .................................................................................................... 11 E. The Impact of the Same-Sex Marriage Cases on the LGBT Workplace ................ 13 IV. Federal Statutory and Executive Order Protections for LGBT Workers ..................... 14 A. Sexual Orientation and Gender Identity Sex Stereotyping under Title VII ........... 15 B. Same-Sex Sexual Harassment Claims under Title VII ............................................. 17 C. EEOC Recognition of Title VII Protections for LGBT Workers ............................ 17 D. EEOC Strategic Enforcement Guidance on LGBT Employment Rights ............... 19 E. Executive Orders Protecting LGBT Employees in the Federal Sector ................... 22 V. State-Wide Protections for LGBT Workers ..................................................................... 24 VI. The Employment Non-Discrimination Act........................................................................ 27 A. ENDA’s Legislative History ........................................................................................ 28 B. ENDA’s Religious Exemptions and the LGBT Community’s 2014 Withdrawal of Support ..................................................................................................................................... 30 VII. Hobby Lobby and the Use of “Religious Liberty” to Attack LGBT Rights .................. 32 2 I. Introduction Lesbian, gay, bisexual, and transgender (LGBT) Americans have long been discriminated against in society and in the workplace, with little to no recourse. Circumstances began to improve for LGBT persons only during the last several decades – and in the last ten years in particular – as attitudes toward LGBT persons underwent a seismic shift towards greater support for equality. Viewed against this relatively brief period of time, the ongoing LGBT civil rights movement stands among the most successful political movements in U.S. history. The movement has made significant and previously unimaginable gains in recent years, with advocacy efforts focused largely on the battle for same-sex marriage; meanwhile, the threat of employment discrimination against LGBT persons has continued to loom large for many. With the Supreme Court’s recent decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), establishing a nation-wide right to marriage equality, the focus of LGBT rights activists will now undoubtedly shift to other areas of inequality. Addressing discrimination in the workplace against LGBT persons is poised to become the next primary battleground for LGBT civil rights, alongside advocacy for protection from discrimination in crucial areas such as housing, public accommodations, and education. II. LGBT Demographics and the Pervasiveness of LGBT Workplace Discrimination LGBT persons constitute a substantial portion of the U.S. population. According to the Williams Institute’s analysis of population surveys conducted in recent years, there are approximately eight million individuals living in the U.S. who identify as LGBT (with 3.5% of Americans identifying as lesbian, gay, or bisexual, and 0.3% of adults as transgender), which amounts to four percent of the U.S. workforce.1 This equates to more than seven million private sector workers and one million public sector workers (roughly 200,000 federal employees, 410,000 state employees, and 575,000 municipal government employees) who identify as LGBT.2 Employment discrimination on the basis of sexual orientation and gender identity is a regrettably common experience for these Americans: according to a national survey, 37% of lesbian and gay employees reported having experienced workplace discrimination or harassment in the last five years, and 12% reported having lost a job due to their sexual orientation.3 1 See Gary J. Gates, The Williams Inst., LGBT Demographics: Comparisons Among Population- based Surveys (2014), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-demogs- sep-2014.pdf; see also Gary J. Gates, The Williams Inst., How Many People Are Lesbian, Gay, Bisexual, and Transgender? (2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates- How-Many-People-LGBT-Apr-2011.pdf. Mr. Gates’ 2014 demographic analysis reviewed the National Survey of Family Growth, 2006-2010; the General Society Survey, 2008, 2010, 2012; the National Health Interview Survey, 2013; and the Gallup Daily Tracking Survey, 2014. 2 See Brad Sears et al., The Williams Inst., Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment 1-1 (2009), available at http://williamsinstitute.law.ucla.edu/research/workplace/documenting-discrimination-on-the-basis-of- sexual-orientation-and-gender-identity-in-state-employment/ 3 See 2008 General Social Survey (GSS), conducted by the National Opinion Research Center at the University of Chicago; Documenting Discrimination on the Basis of Sexual Orientation and Gender 3 Transgender persons face discrimination on an even greater scale: According to a 2011 survey, 90% of transgender people reported having experienced harassment or mistreatment in the workplace or taking actions to avoid such mistreatment, while 47% reported having been discriminated against in hiring, promotion, or job retention because of their gender identity.4 And while conservatives have for decades stymied political efforts to enact a federal employment law that would protect LGBT workers from discrimination, political support for such federal protections is strong, with over 70% of the American public supporting efforts to make employment discrimination against gays and lesbians illegal, including majorities in all 50 states.5 III. Constitutional Protections for LGBT Employees The U.S. Constitution offers relatively little to LGBT persons in the way of anti- discrimination protections in the workplace. This is in part due to the limited nature of the document’s scope: because the U.S. Constitution protects individual liberties only against the actions of government officials and other state actors (excepting the Thirteenth Amendment’s ban on slavery), it provides standing for constitutional claims of only those LGBT workers in the public sector against their public employers. Aggrieved public employees can bring such claims under 42 U.S.C. § 1983, which provides in relevant part: Every person who, under color [of law] . subjects, or causes to be subjected, any citizen of the United States . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Section 1983 thus furnishes an LGBT public employee with a private cause of action to vindicate violations by his or her employer (federal or state actors) of federal rights created by the U.S. Constitution. See, e.g., Quinn v. Nassau County Police Dept., 53 F. Supp. 2d 347 (E.D.N.Y. 1999) (county police officer claiming to have suffered sexual orientation discrimination could bring equal protection claim under Section 1983 because public employer failed to articulate legitimate reasons for anti-gay employment policy and work environment was alleged to include hostile, coarse, and boorish anti-LGBT behavior motivated by animus). Section 1983 does not itself create substantive rights, but instead “provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993); see also Albright v. Identity in State Employment 1 (2009), available at http://williamsinstitute.law.ucla.edu/research/workplace/documentingdiscrimination-on-the-basis-of- sexual-orientation-and-gender-identity-in-state-employment/. 4 See Brad Sears & Christy Mallory, The Williams Inst., Documented Evidence of Employment Discrimination & Its Effects on LGBT People 2 (2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdf.