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 ...... 3

III. Constitutional Protections for LGBT Employees ...... 4

A. Romer v. Evans ...... 5

B. Lawrence v. ...... 7

C. v. Windsor ...... 9

D. Obergefell v. Hodges ...... 11

E. The Impact of the Same-Sex Cases on the LGBT Workplace ...... 13

IV. Federal Statutory and Protections for LGBT Workers ...... 14

A. and Identity Sex Stereotyping under Title VII ...... 15

B. Same-Sex 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

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I. Introduction

Lesbian, , bisexual, and (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 , 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 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 ; Documenting Discrimination on the Basis of Sexual Orientation and Gender

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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 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 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 ). 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.

5 See Katherine Krimmel et al., Gay Rights in Congress: Public Opinion and (Mis)Representation, ( Department of Political Science Working Paper, Oct. 29, 2013), available at http://www.columbia.edu/~jrl2124/kklp.pdf.

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Oliver, 510 U.S. 266, 271 (1994) (“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.” ’) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3, (1979)).

The first step in conducting Section 1983 analysis is to “identify the specific constitutional right allegedly infringed.” Albright, 510 U.S. at 271. Whether an actionable substantive right exists depends on the state of constitutional law as it relates to LGBT persons. The Supreme Court has in recent years focused its recognition of LGBT-related constitutional rights on a state’s power to target LGBT persons for discrimination in the political process, to criminalize private, consensual sexual conduct between same-sex partners, and to restrict the recognition of legally- valid same-sex . While these cases are not directly related to protections for LGBT persons in the workplace, they provide context for the manner in which the Supreme Court approaches LGBT constitutional rights and inform the analysis by which courts analyze Section 1983 claims for employment discrimination against LGBT persons. As detailed below, it is the views of a single Justice, , that have had a particularly significant impact on this area of law.

A. Romer v. Evans

Romer v. Evans, 517 U.S. 620 (1996), was a landmark decision in the LGBT civil rights movement, introducing Justice Anthony Kennedy as the critical Supreme Court swing vote and the jurist on which the fate of LGBT constitutional rights would come to hinge. At issue in Romer were various local ordinances banning discrimination on the basis of sexual orientation in education, public accommodations, and health and welfare services. These legislative protections upset opponents of LGBT equality and prompted them to launch an initiative to pass a reactionary statewide referendum to amend the state constitution. This state constitutional amendment, which came to be known as Amendment 2, sought to prohibit all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Amendment 2 stated in relevant part:

No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Colo. Const. Art. II, §30(b). Colorado voters considered and ultimately adopted Amendment 2, and in so doing set the stage for one of the foundational U.S. Supreme Court decisions protecting LGBT-related constitutional rights.

LGBT activists filed a lawsuit in Colorado state court seeking to invalidate Amendment 2 and enjoin its enforcement. The state trial court sided with the activists and granted their motion

5 for a preliminary injunction, which the Colorado Supreme Court thereafter upheld on appeal, finding that Amendment 2 was subject to strict scrutiny under the of the Fourteenth Amendment because the amendment violated the fundamental right of gays and lesbians to participate in the political process. When the state trial court later found in favor of the LGBT plaintiffs on the merits and held that the state constitutional amendment could not survive strict scrutiny, the Colorado Supreme Court affirmed that decision, bringing the matter before the Supreme Court of the United States.

In a 6-3 decision authored by Justice Kennedy – with Justices Scalia, Rehnquist, and Thomas in dissent – the Supreme Court held that Amendment 2 violated the Equal Protection Clause of the U.S. Constitution because it could not withstand “rational basis” constitutional scrutiny. Justice Kennedy opened his discussion of Amendment 2 by invoking Justice Harlan’s condemnation of the “separate but equal” precepts championed in the infamous Plessy v. Ferguson, 163 U.S. 537 (1896). See Romer, 517 U.S. at 623. Justice Kennedy described the amendment as one which uniquely harmed gay and lesbian Coloradoans: “[h]omosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” Id. at 627. Turning to his Equal Protection analysis, Judge Kennedy allowed that most legislation draws lawful distinctions between particular groups, and that “[t]he Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Id. at 631. The opinion further observed that a law should be sustained under most circumstances if it can be said to advance a legitimate government interest, even if the law is ill-advised or disadvantages a particular group. See id. (citing New Orleans v. Dukes, 427 U.S. 297 (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. , 336 U.S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner’s products from general advertising ban); Kotch v. Board of River Port Pilot Comm’rs for Port of New Orleans, 330 U.S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system)).

According to the Court, however, and in contrast to the cases listed in the foregoing string cite, Amendment 2 was both impermissibly narrow and broad, in that it “identifies persons by a single trait and then denies them protection across the board.” Id. at 633. The majority also took exception with the motives that prompted Amendment 2’s passage, stating that the law imposed a “broad and undifferentiated disability on a single named group” and that “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Id. at 632. The majority noted that the electorate’s anti-LGBT animus resulted in the “disqualification of a class of persons from the right to seek specific protection from the law [that] is unprecedented in our jurisprudence.” Id. at 633.

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Applying , the Court considered and rejected the state’s contention that Amendment 2 advanced other Coloradoans’ freedom of association and the interests of those citizens with personal or religious objections to , finding that the breadth of Amendment 2 made it impossible to credit the state’s justifications. Id. at 635. Justice Kennedy instead found that Amendment 2 simply evidenced the majority of Coloradoans’ “bare desire to harm” a politically unpopular group, which cannot constitute a legitimate governmental interest. Id. at 634 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (internal quotation marks omitted)). He closed the majority’s opinion by noting that “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.” Id. at 636.

B. Lawrence v. Texas

Justice Kennedy built on his LGBT civil rights jurisprudence in Lawrence v. Texas, 539 U.S. 558 (2003). At issue in Lawrence was a state’s prosecution of two homosexual men for their private, consensual sexual conduct. Acting on an anonymous tip, officers of the Police Department entered Joseph Geddes Lawrence’s apartment and found him engaged in a private, consensual sexual act with another man, Tyron Garner. The police arrested Lawrence and Garner, and the men were ultimately convicted for deviate sexual intercourse in violation of a state sodomy statute. The Texas State Court of Appeals upheld their convictions and found the sodomy statute constitutional within the meaning of the of the Fourteenth Amendment, under Bowers v. Hardwick, 478 U.S. 186 (1986). Lawrence and Garner sought review by the Supreme Court.

Writing for the five member majority including Justices Stevens, Ginsburg, Souter, and Breyer, in a 6-3 decision (with Justice O’Connor concurring in the judgment only), Justice Kennedy agreed with the Texas State Court of Appeals that Bowers did, on its face, provide controlling precedence for the case. His majority opinion, however, went on to explicitly overrule Bowers upon review and hold that the Texas state sodomy statute violated the Due Process Clause of the U.S. Constitution because it criminalized intimate sexual conduct between consenting same- sex adults. Justice Kennedy devoted a substantial portion of the majority opinion to discussing how decisions that followed soon after Bowers, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) and Romer, “cast doubt” on its premise and ultimate holding. See Lawrence, 539 U.S. at 573-75 (discussing liberty interests protected by Due Process Clause in those cases). The majority in Lawrence found that sodomy statutes touched upon the most private human conduct in the intimacy of the home and sought to impermissibly control personal relationships. Justice Kennedy also discussed the international community’s growing acceptance of LGBT persons and the states’ abandonment of sodomy statutes generally. Lawrence, 539 U.S. at 573-74, 576-77.

The majority found that the law failed rational basis review because the public’s mere moral disapproval of private sexual conduct between same-sex partners was an insufficient basis to uphold a law that criminalizes that conduct. See id. at 577-78. Justice Kennedy’s opinion also found that private decisions concerning the intimacies of physical relationships constitute a form of “liberty” protected by due process even where those relationships are not intended to produce

7 offspring. Id. The Lawrence majority was emphatic about the death of Bowers: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” Lawrence, 539 U.S. at 578. Importantly, however, Justice Kennedy noted that Lawrence did not involve same-sex marriage, implying at the close of the majority’s opinion that if it did, the outcome would have differed:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a . Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Id. at 578 (emphasis added).

Justice O’Connor – who had joined the majority in Bowers – declined to join the majority in overturning that decision and instead wrote a concurrence striking down the Texas sodomy statute on Equal Protection grounds. She noted that the sodomy statute at issue in Lawrence, unlike the sodomy statute in Bowers, criminalized sodomy only if a person engaged in same-sex sodomy. See id. at 581. And just as Justice Kennedy had done at the close of the majority’s opinion, Justice O’Connor also observed that Lawrence did not involve the issue of whether a state can prohibit same-sex marriage, strongly suggesting that she would uphold any such law. Id. at 585 (“Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations – the asserted state interest in this case – other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”).

As he had in Romer, Justice Scalia authored a scathing dissent in Lawrence (again joined by Justices Rehnquist and Thomas), in which he bemoaned the majority’s subscription to the legal profession’s “homosexual agenda.” Id. at 602. It was this ideological allegiance, according to Justice Scalia, that prompted the majority to overturn of Bowers in what he viewed to be an expedient, politically-motivated, and dangerous departure from stare decisis. Justice Scalia emphasized that the criminalization of same-sex sexual conduct should be left to the democratic process, not to activist judges, and that legitimate government interests existed to support such laws. Id. at 604. He closed the dissent by predicting that the rationale underpinning Justice Kennedy’s majority opinion in Lawrence would soon pave the way for the Court’s recognition of same-sex marriage, despite Justice Kennedy and Justice O’Connor’s assurances to the contrary. Id. at 604 (“At the end of its opinion – after having laid waste the foundations of our rational-basis jurisprudence – the Court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ Do not believe it.”) (internal citation omitted).

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C. United States v. Windsor

Justice Scalia’s fears of the Court’s inclination to recognize same-sex marriage were partially vindicated in U.S. v. Windsor, 133 S. Ct. 2675 (2013). In that case, two American women lawfully married in Canada in 2007 and thereafter returned to , where one of them passed away in 2009. The decedent left her entire estate to her surviving wife, , who then sought to invoke the federal estate tax exemption for surviving spouses. Although the state of New York recognized her marriage, the federal (DOMA), prevented her from successfully invoking the exemption and securing tax relief, as DOMA excluded a same-sex partner from the definition of “spouse” as the term is used in federal statutes (including the estate tax statute). Windsor paid the estate taxes and filed suit to recover those amounts and challenge the constitutionality of DOMA. The U.S District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit held that Section 3 of DOMA, which amended federal Dictionary Act to define “marriage” and “spouse” in heterosexual terms, was unconstitutional.

In a 5-4 decision authored, again, by Justice Kennedy and joined by the four more liberal Justices now on the bench (Ginsburg, Breyer, Sotomayor, and Kagan), the Supreme Court affirmed the Second Circuit’s decision and struck down Section 3 of DOMA as an unconstitutional deprivation of the equal liberty of persons protected by the Fifth Amendment of the U.S. Constitution. See Windsor, 133 S. Ct. at 2696. Justice Kennedy’s opinion began by finding that the Supreme Court had jurisdiction to hear the case even though the Obama administration’s Justice Department declined to defend the constitutionality of DOMA. The Court determined that a justiciable controversy existed largely because the Republican leadership of the U.S. House of Representatives had intervened to defend the law and presented a substantial argument for the constitutionality of Section 3. See id. at 2687-89.

Turning to the merits, Justice Kennedy advanced an amalgam of distinct but related theories – including federalism, equal protection, and due process concerns – that, in the eyes of the majority, combined to render Section 3 of DOMA unconstitutional. Justice Kennedy noted that the separate States had historically defined and regulated marriage, and that DOMA had disrupted the states’ historical province over marriage regulation when it defined marriage for purposes of federal policy, which implicated over 1,000 federal statutes and impacted the recognition of legally-valid marriages. See id. at 2690. The majority found that the federal government had thereby perverted the prerogative of eleven states and the District of Columbia to recognize same-sex marriage, through the imposition of federal restrictions and disabilities on the states’ ability to do so. See id. at 2692. Citing Romer, Justice Kennedy noted that DOMA violated basic due process and equal protection concerns when it sought to injure the very persons whom the state of New York sought to protect through same-sex marriage recognition. See id. at 2693. He examined the legislative history of DOMA and the arguments put forth by the U.S. House of Representatives, both of which confirmed that the federal government intended to interfere with state choices on who may be married. Id. Justice Kennedy relied on Lawrence to detail the inherent inequality of Section 3’s operation:

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DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S. Ct. 2472, and whose relationship the State has sought to dignify.

Id. at 2694.

Justice Kennedy concluded the majority opinion in Windsor by detailing the inequities created by DOMA for same-sex partners and their children. See id. at 2694-96. As a result of the discriminatory regime it generated, the Court found Section 3 of DOMA unconstitutional, while expressly (and somewhat abruptly) limiting the scope of the holding in the penultimate sentence of the decision:

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Id. at 2696 (emphasis added).

In yet another contemptuous dissent, Justice Scalia attacked Justice Kennedy’s reasoning, this time joined by Justices Thomas and Roberts (the latter of whom agreed only with Justice Scalia’s jurisdictional discussion), with Justice Alito dissenting separately. Justice Scalia opened by complaining that the majority’s holding in Windsor aggrandized the Supreme Court’s power and undermined the political process. Id. at 2697. He contended as a threshold matter the Supreme Court (and the Second Circuit) lacked jurisdiction to hear the case because Windsor lacked a requisite injury, as any harm she suffered was cured by the judgment in her favor, and there was no controversy within the meaning of Article III of the U.S. Constitution due to the federal government’s refusal to defend DOMA. Id. at 2703-05.

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Justice Scalia then turned to criticisms of what he viewed as the shaky and shifting grounds of the majority’s opinion, noting that the decision feigned toward federalism concerns and then appeared to predicate its holding on Equal Protection grounds. See id. at 2705-06. Justice Scalia further observed that the majority’s opinion “does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.” Id. at 2706. Instead, Justice Scalia argued, the majority implicitly premised its opinion on “substantive due process” considerations, which would have been an “absurd” claim for the majority to state openly, as same-sex marriage lacks the requisite deep roots in American history and tradition for recognition as a fundamental right. Id. at 2706-07.

Justice Scalia also challenged the majority’s claim that Section 3 of DOMA was motivated by a “bare desire to harm,” and contended that moral disapproval of same-sex marriage sufficed to justify law’s constitutionality. Id. at 2707. He claimed that DOMA could be justified by the legitimate governmental interests of avoiding difficult choice of law issues and preserving the intended effects of prior legislation. Id. at 2708. Justice Scalia closed his dissent by referring to Lawrence and claiming that Windsor marked yet another step in the process of federal recognition of same-sex marriage:

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 2696. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

Id. at 2710.

D. Obergefell v. Hodges

With the ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), Justice Scalia’s saw his prophesy that Lawrence and Windsor were omens for the Court’s eventual recognition of same- sex marriage finally come to pass. Following a wave of challenges to statewide bans on same-sex marriage after the Court’s decision in Windsor, Obergefell comprised four cases filed by same-sex couples in , , , and . The district courts in all four states had ruled in the petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed, holding that the Fourteenth Amendment does not require a State to license a marriage between two people of the same sex, or to recognize a marriage between two people of the same sex licensed in another state.

In a 5-4 decision authored by Justice Kennedy and joined, as in Windsor, by the four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan), the Supreme Court reversed the Sixth Circuit’s decision and held that the Fourteenth Amendment requires states to license a marriage between two people of the same sex, and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state. Id. at 2593-2608. Justice Kennedy’s opinion consists of three distinct arguments: (1) the history of marriage is one

11 of evolving norms; (2) marriage is a fundamental right under the Due Process Clause of the Fourteenth Amendment; and (3) the right of same-sex couples to marry is also derived from the protections of the Fourteenth Amendment’s Equal Protection Clause.

Justice Kennedy’s opinion begins by discussing the history of marriage, as well as the role of marriage in American society. After discussing the “centrality of marriage to the human condition,” id. at 2594, Justice Kennedy places the petitioners within that context by describing their relationships. Id. at 2594-95. Based on their commitment to each other, Justice Kennedy concludes that the petitioners’ “stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.” Id. at 2595. He then turns to the dual evolutions of society’s understanding of both marriage and same-sex relationships. Id. at 2595-96. He places the Court’s prior decisions on the rights related to marriage within the context of the broader evolution on society’s views of marriage and same-sex relationships, admitting that those earlier cases “presumed a relationship involving opposite-sex partners.” Id. at 2598. He explains that the “Court, like many institutions, has made assumptions defined by the world and time of which it is a part.” Id. Justice Kennedy suggests that all of the developments in the area of society’s treatment of both marriage and same-sex relationships have been reflected in prior Court decisions, and must be reflected in this decision on the constitutionality of state bans on same-sex marriage.

Justice Kennedy then explains that the Court has long recognized that the Due Process Clause of the Fourteenth Amendment provides certain fundamental rights, and that among those rights is the right to marriage. Id. at 2598. He states that the Court’s precedents on the right to marriage have “identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.” Id. Justice Kennedy elaborates on four principles and traditions related to marriage that “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples”: (1) the right to personal choice regarding marriage; (2) marriage’s support of two-person unions; (3) the safeguards marriage creates for children and families; and (4) marriage’s role as a “keystone of our social order.” Id. at 2599; 2599-2601. Justice Kennedy concludes that:

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.

Id. at 2602.

The opinion then turns, more briefly, to the Equal Protection Clause of the Fourteenth Amendment. After discussing the frequent interplay between fundamental rights guaranteed by the Due Process Clause and the protections of the Equal Protection Clause, Justice Kennedy concludes that “[t]he right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws.” Id. at 2602. He explains that state bans on same-sex marriage burden the liberty of same-sex couples and “abridge central precepts of equality.” Id. at 2604. He continues:

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Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

Id.

Notably absent from Justice Kennedy’s discussion of the Equal Protection Clause is anything resembling a traditional Equal Protection analysis. Indeed, the opinion contains no discussion of scrutiny, no mention of “rational basis,” and no weighing of “state interests.” Rather, as Justice Roberts notes in his dissent, Justice Kennedy asserts “in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding.” Id. at 2623 (Roberts, C.J. dissenting). In the run up to the case, many Court observers speculated about which level of scrutiny the Court would apply to the petitioners’ Equal Protection claim. Some hoped the Court would use the case as an opportunity to clarify whether state policies affecting LGBT people should be evaluated under heightened scrutiny. Justice Kennedy’s opinion foregoes that discussion altogether, instead concluding that same-sex marriage bans violate the Equal Protection Clause because they treat same-sex couples differently than opposite-sex couples. Justice Roberts, in contrast, clearly applies rational basis, the lowest level of scrutiny, to the petitioners’ claims and finds them lacking. See id.

E. The Impact of the Same-Sex Marriage Cases on the LGBT Workplace

The Obergefell holding will not likely have any immediate significant impact for LGBT employees in the workplace, in part because the majority opinion failed to give sexual orientation general recognition as a suspect class for which heightened scrutiny should apply (along with race, sex, ethnicity, and illegitimacy); the Court instead simply concluded that same-sex marriage bans violate the Equal Protection Clause. Obergefell’s silence on the suspect class issue may indicate critical divisions within the liberal bloc of the Court, or might signal that the Court simply remains open to considering the question in a future case. Litigants might soon argue that Obergefell does in fact support treating LGBT people as a suspect class, citing Justice Kennedy’s reference to the “long history of disapproval of their relationships.” Id. at 2604. Litigants might also point out that although federal appellate courts have historically rejected sexual orientation as the sort of immutable characteristic of a discrete and politically powerless class (thereby entitled to the protections of heightened judicial scrutiny of state action), these decisions predate Windsor and Obergefell, and are significantly out of step with the recent sea change in the law. See, e.g., Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990); Ben-Shalom v. Marsh, 881

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F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

It can also be readily argued that the characteristics that define a suspect class fit neatly with sexual orientation, as gays and lesbians form a class of persons who have suffered historical discrimination, sexual orientation lacks a relation to a person’s ability to perform or contribute to society, the state has used obvious, immutable, or distinguishing characteristics that define gays and lesbians as members of a discrete group, and gays and lesbians arguably have held a minority or politically powerless status. See Bowen v. Gillard, 483 U.S. 587, 602 (1987); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-41 (1985). Judicial recognition of sexual orientation as a suspect class would greatly increase the strength of public employees’ Section 1983 claims, as the employer’s state action (i.e., adverse personnel actions) would be subjected to heightened judicial scrutiny. That being said, the Supreme Court has been disinclined to apply heightened scrutiny to any newly identified classes, and has not does so since recognizing illegitimacy in Mills v. Habluetzel, 456 U.S. 91, 99 (1982). Furthermore, opponents of recognizing LGBT people as a suspect class may argue that the Obergefell’s majority opinion did not merely decline to decide the suspect class issue in that case, but essentially rejected that basis for the ultimate outcome. They can accurately argue that Justice Kennedy’s opinion is far more focused on rights related to same-sex relationships than on rights related to same-sex individuals.

The most likely impact of Obergefell and the other same-sex marriage cases on LGBT workers will thus be indirect. Most obviously, with legal recognition for their marriages in every state, LGBT workers are now entitled to obtain spousal benefits for their partners if employers provide those benefits to opposite-sex spouses. There will undoubtedly be periodic struggles to actually exercise and enjoy the equal rights established by Obergefell, as some opponents to LGBT equality will argue that First Amendment and statutory rights to religious liberty provide exemptions (arguments made recently by the Kentucky county clerk who refused to issue or authorize marriage licenses to same-sex couples on the grounds that her religious liberty would be violated will probably arise again in the private employment context). Whatever the initial legal effect of Obergefell on LGBT workers, it seems likely that the case will have considerable political impact on LGBT employment issues more generally over time. Legal recognition of same-sex marriages will almost certainly increase pressure on both legislatures and courts to create additional legal protections for LGBT workers to avoid incongruity in the law. For example, in states without anti-discrimination laws covering LGBT workers, a man can marry his same-sex partner on a Saturday, and be fired from his job for displaying his wedding photos on his desk on Monday. The obvious absurdity of this situation can only serve to increase the pressure on legislatures and courts to create additional employment protections for LGBT workers.

IV. Federal Statutory and Executive Order Protections for LGBT Workers

Title VII of the , 42 U.S.C. §§ 2000e et seq. (Title VII), is the primary federal law that protects employees from discrimination and retaliation on the basis of certain protected statuses. Title VII currently prohibits a covered employer from terminating or otherwise discriminating against an employee in any manner “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color religion, sex or national origin.” 42 U.S.C. §2000e-2(a)(1). Additionally, the Americans with Disabilities

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Act, 42 U.S.C. § 12101 et seq. (ADA), protects employees from discrimination on the basis of disability, while the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), protects workers from discrimination on the basis of their age. Together, these statutes establish the general class of federally-protected statuses, and employees falling within those statuses are protected from unlawful discrimination and certain retaliatory personnel actions.

Title VII does not currently include an express provision including sexual orientation or gender identity/expression as statuses that enjoy federal employment protections. As a result, employees generally cannot invoke the protections of Title VII in instances where an employer subjects them to discrimination because of their sexual orientation or gender identity, or where the employee objects to such discrimination and is thereafter subjected to retaliatory personnel actions because of those objections. There are certain limited exceptions to this general rule, which largely involve instances of sex stereotyping and failures to conform to gender roles in the workplace.

A. Sexual Orientation and Gender Identity Sex Stereotyping under Title VII

Although Title VII does not provide a specific cause of action to LGBT persons subjected to discrimination, the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228, 232 (1989) (plurality opinion), provides a narrow but important exception to the general rule that sexual orientation and gender identity-based claims are not actionable under Title VII through its prohibition on “sex stereotyping.” Price Waterhouse established that it is unlawful discrimination within the meaning of Title VII for an employer to take adverse actions against an employee on the basis of the employee’s failure to conform to gender norms. Id. The plaintiff in Price Waterhouse, a manager in the prestigious accounting firm, was denied partnership in part because the firm’s senior leadership considered her too “macho” and lacking in feminine qualities. Id. at 235. The firm advised the plaintiff that she could improve her chances for partnership if she were to take “a course at charm school,” “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. (internal quotation marks omitted).

Six members of the Supreme Court agreed that these comments reflected actionable gender discrimination resulting from sex stereotyping – i.e., discrimination based on Hopkins’ refusal to act like a woman consistent with management’s pre-conceived gender norms. Id. at 250-51 (plurality opinion of four Justices); id. at 258-61 (White, J., concurring); id. at 272-73 (O’Connor, J., concurring) (accepting plurality’s sex stereotyping analysis and characterizing the “failure to conform to [gender] stereotypes” as a discriminatory criterion; concurring separately to clarify the distinct issues of causation and allocation of the burden of proof). The Supreme Court thus made clear that, in the context of Title VII, discrimination because of sex includes gender discrimination: “[i]n the context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250. The Court emphasized 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.” Id. at 251.

The reasoning underlying Price Waterhouse provides an opening for practitioners to bring sex stereotyping claims against employers when homosexual and transgender employees are subjected to discrimination because those workers do not conform to gender norms or roles. See,

15 e.g., Glenn v. Brumby, 663 F.3d 1312, 1316-20 (11th Cir. 2011) (in case decided on equal protection grounds, court notes that Title VII’s sex-discrimination protections extend to transgender people under a sex-stereotyping theory); Smith v. City of Salem, 378 F.3d 566, 571- (6th Cir. 2004) (discussing Price Waterhouse and holding that homosexual employee properly stated a Title VII sex discrimination claim where he alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind employer’s adverse actions); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (same); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (claim for sex discrimination could be grounded in comments targeting gay man for “effeminate behavior,” but dismissing claim because sex stereotyping theory had not been advanced before trial court); Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated on other grounds, 523 U.S. 1001 (1998). These holdings are consistent with legal commentators who have argued that “the stigmatization of the homosexual has something to do with the homosexual’s supposed deviance from traditional sex roles.”6

Many courts, however, approach sex stereotyping claims of this nature with skepticism and are disinclined to allow such claims to proceed. In Williams v. Waffle House, 2010 WL 4512819 (M.D. La. Nov. 2, 2010), for example, a district judge dismissed a gender-based discrimination claim under Price Waterhouse involving sexual orientation issues, criticizing it as a “poorly disguised claim of [non-actionable] sexual orientation discrimination.” A variety of trial and appellate courts across have followed similar reasoning to reject claims by homosexual plaintiffs. See, e.g., Spearman v. Ford Motor Co., 231 F.3d 1080, 1084-85 (7th Cir. 2000), cert. denied, 532 U.S. 995 (2001) (“Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation. Therefore, harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII”) (citation omitted); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001), cert. denied, 122 S. Ct. 1126 (2002) (plaintiff’s claim indicated only that he was being harassed on the basis of his sexual orientation, rather than because of his sex, and the district court properly determined that there was no cause of action under Title VII); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) (discharge for homosexuality is not prohibited by Title VII); Oiler v. Winn–Dixie Louisiana, Inc., 2002 WL 31098541 (E.D. La. Sept. 16, 2002) (courts have continued to hold that discrimination on the basis of sexual preference or orientation is not actionable under Title VII because it is not discrimination based on a person’s “sex”); Mims v. Carrier Corp., 88 F.Supp.2d 706, 714 (E.D. Tex. 2000) (discrimination on basis of sexual orientation not actionable under Title VII, as “[n]either sexual orientation nor perceived sexual orientation constitute protected classes under the Civil Rights Act. Therefore, lacking membership in a protected class, the plaintiff’s claim fails as a matter of law”); Broadus v. State Farm Ins. Co., 2000 WL 1585257, at *4, n.2 (W.D. Mo. 2000).

6 See Andrew Koppelman, Why Discrimination Against Lesbians and Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234 (1994); see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 993, 996 (N.D. Cal. 2010) (different-sex requirement for marriage recognition is attributable to separate gender roles formerly imposed on spouses, and sex and sexual orientation are interconnected ideas).

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B. Same-Sex Sexual Harassment Claims under Title VII

As noted above, Title VII prohibits a covered employer from terminating or otherwise discriminating against an employee in any manner “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color religion, sex or national origin.” 42 U.S.C. §2000e-2(a)(1). The Supreme Court has interpreted discrimination on the basis of sex with respect to the terms, conditions, or privileges of employment to include sexual harassment through the creation of a sexually hostile work environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). An actionable hostile work environment is one in which “discriminatory intimidation, ridicule, and insult . . . [is] sufficiently severe or pervasive as to alter the conditions of a victim’s employment.” Meritor Savings Bank, 477 U.S. at 67. To establish a prima facie case for a sexually hostile work environment, the plaintiff must demonstrate: (1) she was subjected to harassment because of her sex; (2) she found the harassment subjectively unwelcome; (3) the harassment was sufficiently severe or pervasive to create an objectively abusive, hostile working environment; and (4) she has some basis for imputing liability for the harassment to the employer. See Meritor Savings Bank, 477 U.S. at 67; Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2005).

Given this formulation of the plaintiff’s prima facie case, same-sex sexual harassment is actionable under Title VII. The Supreme Court held in Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75 (1998), that Title VII protects gay and lesbian employees from gender-based discrimination in the form of sexual harassment. According to the Supreme Court, a plaintiff seeking to establish a viable same-sex sexual harassment claim must show the alleged harasser made explicit or implicit proposals of sexual activity and supply credible evidence that the harasser (not the victim of the harassment) was homosexual. See, e.g., Love v. Motiva Enterprises LLC, 2009 WL 3334610, at *1 (5th Cir. 2009); see also Barrows v. Seneca Foods Corp., 512 F. App’x 115, 117 (2d Cir. 2013). It is important to note that the elements set out in Oncale do not include the requirement that the plaintiff is in fact gay; all that is required is that the plaintiff show a harasser of the same sex made proposals of sexual activity and that the harasser in question was homosexual – which a heterosexual or homosexual plaintiff could establish equally, without reference to his or her own sexual orientation.

C. EEOC Recognition of Title VII Protections for LGBT Workers

In recent years the Equal Employment Opportunity Commission (EEOC) has asserted that Title VII does proscribe discrimination on the basis of sexual orientation, despite the lack of explicit statutory language and substantial case law to the contrary. The EEOC’s power to affect the legal protections of LGBT workers takes two forms: (1) its decisions regarding Title VII complaints by federal government employees; and (2) its litigation of private disputes. On both fronts, the EEOC has made notable progress for LGBT workers in recent years.

The first notable development in the EEOC’s treatment of LGBT workers was its decision in Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012), when it first determined that Title VII proscribes discrimination on the basis of gender identity. Id. at *7 (“When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim”) (citations omitted).

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Significantly, the Commission went further than courts had thus far extended the Price Waterhouse line of cases when it concluded that Title VII provides protections for transgender employees “regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.” Id. The Commission posited that the holding in Price Waterhouse was not limited to cases involving gender stereotyping, but rather allowed gender stereotyping to be one form of evidence that proves discrimination on the basis of sex. Id. at *10. The Commission thus concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.” Id. at *11.

The EEOC applied a similar analysis in 2015 when it addressed discrimination on the basis of sexual orientation in Baldwin v. Fox, EEOC DOC 0120133080, 2015 WL 4397641 (July 16, 2015). Faced with a Title VII allegation by a prospective employee of a federal agency that he was not hired because of his sexual orientation, the Commission concluded that “sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.” Id. at *5. As in Macy, the Commission made it clear that its holding was not limited to cases in which a gay employee proved he had been discriminated against because of gender stereotyping. See id. at *7. Indeed, the Commission identified several ways in which a gay employee could be discriminated on the basis of sex:

An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.

Id. at *10.

Both Macy and Baldwin have important, but limited authority. As EEOC precedents, future Commissions are likely to abide by them. Compared to the protections of LGBT employees provided by executive order (discussed in more detail below), these holdings are thus more likely to endure past a change in executive administration. Furthermore, as the federal agency tasked with administering Title VII, the EEOC’s position might be entitled to deference if courts are asked to interpret Title VII’s prohibition on sex discrimination in the future. Should a court defer to the EEOC on this issue, the Commission’s decisions in Macy and Baldwin would potentially have significant impact on Title VII protections for LGBT employees more generally.

It is important to note the current limitations on these decisions, as well, however. Macy and Baldwin have, as yet, little precedential value outside of the EEOC and outside of federal sector jurisprudence. The only court to substantively consider either case held that Baldwin was persuasive but not binding authority. Burrows v. Coll. of Cent. , 2015 WL 5257135, at *2 (M.D. Fla. Sept. 9, 2015) (denying a motion for reconsideration based on the EEOC’s decision in

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Baldwin). Although the EEOC cases may influence courts considering private Title VII claims, they in no way bind those courts to the conclusion that Title VII prohibits discrimination on the basis of sexual orientation and gender identity.

In an effort to shape the law in this area, the EEOC has intervened in several cases involving claims of sexual orientation or gender identity discrimination brought under Title VII.7 Most notably, the EEOC wrote an amicus brief in Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014), as amended on denial of reh’g (Oct. 16, 2014). In Muhammad, a panel of the Seventh Circuit Court of Appeals originally rejected the plaintiff’s Title VII sexual orientation discrimination claim on the grounds that Title VII does not prohibit discrimination on the basis of sexual orientation. When the plaintiff petitioned for rehearing en banc, the EEOC wrote an amicus brief arguing that at minimum, the panel should remove references to the conclusion that Title VII’s prohibition of discrimination on the basis of sex does not include discrimination on the basis of sexual orientation. The brief argued that the court’s conclusion on this issue was based on precedents overruled by Price Waterhouse. According to the EEOC, Price Waterhouse rejected the narrow definition of sex that characterized decisions from earlier Title VII cases involving sexual orientation. Although the panel chose not to rehear the case, it amended the original opinion by removing its original rulings regarding the scope of Title VII coverage. The amendment of the opinion suggests at least some openness to the arguments made by the EEOC.

In the handful of cases discussed in this section, the EEOC’s evolving position on the status of sexual orientation and gender identity in Title VII’s definition of “sex” is based on a fundamental rethinking of the significance of Price Waterhouse. While the post-Price Waterhouse cases discussed above in Section IV-A treat that holding as an opportunity to shoehorn sexual orientation and gender identity discrimination claims into a Title VII claim by relying on gender stereotyping, the EEOC seems to interpret the case as actually expanding Title VII’s definition of “sex.” This is a significant distinction. Under the EEOC’s interpretation of Price Waterhouse, a plaintiff can state a claim under Title VII by alleging discrimination on the basis of sexual orientation of gender identity, period. There is no need to adduce evidence that the discrimination was related to a perceived failure to match gender stereotypes. Interpreting Title VII in this manner essentially does the job of proposed legislation such as ENDA or the Equality Act (both discussed further below) by providing full protection for LGBT workers who are discriminated against on the basis of their sexual orientation or gender identity. Although the EEOC’s federal sector decisions have not yet proven to be a catalyst for change in the courts, the success of the EEOC in Muhammad suggests that its argument could gain traction. Should that happen, workplace protections for LGBT people will be forever transformed.

D. EEOC Strategic Enforcement Guidance on LGBT Employment Rights

In addition to the agency decisions discussed above, the EEOC has publicly embraced the cause of protecting LGBT employees from discrimination on the basis of sexual orientation and gender identity as a matter of policy. In an EEOC Strategic Enforcement Plan adopted via bipartisan vote in December 2012, the EEOC identified the coverage of LGBT individuals “under Title VII’s sex discrimination provisions, as they may apply” as a Commission enforcement

7 See http://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm.

19 priority for Fiscal Years 2013-2016.8 The EEOC, which characterized this area as an “emerging and developing issue” in the Strategic Plan, has instructed its investigators and attorneys that discrimination against on an employee on the basis of sexual orientation and gender identity constitutes sex discrimination within the meaning of Title VII.9

Consistent with this enforcement priority, the EEOC began to track charges alleging sexual orientation and gender identity discrimination in January 2013. The following table sets forth the information compiled by the EEOC regarding charges of this nature that were resolved by the Commission from January 2013 through June 30, 2014. As detailed below, the EEOC received 667 charges in which the complaining party alleged sex discrimination on the basis of sexual orientation, and 161 charges alleging sex discrimination on the basis of gender identity or transgender status, in the final three quarters of fiscal year 2013 (January 2013 through September 2013). In the first three quarters of fiscal year 2014, the EEOC received 663 charges alleging sex discrimination related to sexual orientation and 140 charges alleging sex discrimination on the basis gender identity/transgender status:10

8 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013- 2016 (Dec. 17, 2012), available at http://www.eeoc.gov/eeoc/plan/sep.cfm.

9 See What You Should Know about EEOC and the Enforcement Protections for LGBT Workers, available at: http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_ workers.cfm (citing Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (discrimination on the basis of transgender status is sex discrimination within the meaning of Title VII); Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep’t of Homeland Sec., EEOC DOC 0120110576 (August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory)). The EEOC has also commenced filing LGBT-related lawsuits against employers alleging sex discrimination. See EEOC v. Lakeland Eye Clinic, P.A., Civ. No. 8:14-cv- 2421-T35 (M.D. Fla. Sep. 25, 2014) (eye clinic allegedly committed unlawful sex discrimination when it fired employee because she was transitioning from male to female and did not conform to her employer’s gender norms and expectations); EEOC v. R.G. & G.R. Harris Funeral Homes Inc., Civ. No. 2:14-cv- 13710-SFC-DRG (E.D. Mich. Sep. 25, 2014) (funeral home allegedly committed sex discrimination when it fired a male-to-female transitioning employee who informed her employer that she would soon begin to wear female attire to work).

10 See http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.

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FY2013 FY2014 through 3rd Quarter

Sex – Sex - Sex - Gender Sex - Gender Total Sexual Total Identity / / Transgender Transgender Orientation Orientation

Total 801 160 667 784 140 663 Received

Pending 173 45 133 386 74 319

Resolved 628 115 534 398 66 344

Settlements 62 9 55 38 10 30

Withdrawal 33 6 28 22 22 w/Benefits

Reasonable 16 7 9 1 1 1 Cause

% Reasonable 2.5% 6.1% 1.7% 0.3% 1.5% 0.3% Cause

Successful 10 3 7 Conciliation

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FY2013 FY2014 through 3rd Quarter

Sex – Sex - Sex - Gender Sex - Gender Total Sexual Total Identity / Sexual Identity / Transgender Transgender Orientation Orientation

Unsuccessful 6 4 2 1 1 1 Conciliation

Merit 111 22 92 61 11 53 Resolutions

% Merit 17.7% 19.1% 17.2% 15.3% 16.7% 15.4% Resolutions

No Reasonable Cause 420 78 357 251 33 223 Findings

Administrative 97 15 85 86 22 68 Closures

Monetary $1,874,148 $421,701 $1,561,671 $884,659 $149,933 $747,225 Benefits

E. Executive Orders Protecting LGBT Employees in the Federal Sector

Owing to executive action, civilian LGBT employees in the federal sector fare better than their private sector counterparts in terms of protections from employment discrimination. On May 28, 1998, President signed , which amended Executive Order 11478 – signed by President and prohibiting discrimination in the federal workforce on the basis of certain protected statuses – to prohibit discrimination on the basis of sexual

22 orientation in the competitive service of the federal civilian workforce. The class of protected workers includes employees of the District of Columbia government, the U.S. Postal Service, and civilian workers in the U.S. Armed Forces, but excludes employees in the excepted services (e.g., the Central Intelligence Agency, Federal Bureau of Investigation, and the ) and uniformed members of the U.S. military. The White House made clear that Executive Order 13087 merely stated the Clinton Administration’s policy, and did not and could not create any new enforcement rights for employees (such as the right to proceed before the EEOC) that were within the authority of Congress alone to establish. That said, federal employees covered by Executive Order 13087 acquired the right to bring complaints of discrimination before the Office of Special Counsel on the basis of sexual orientation, and to appeal adverse determinations of those grievances to the Merit Systems Protection Board.

President again expanded employment protections for LGBT federal sector workers when he signed on July 21, 2014, which further amended Executive Order 11478 to add gender identity to the class of protected statuses. President Obama’s Executive Order 13672 also amended , which President Lyndon Johnson signed to prohibit discrimination by federal government contractors and sub-contractors on the basis of race, color, religion, sex, or national origin, to add sexual orientation and gender identity to the protected statuses. While the addition of gender identity to the class of statuses protected by Executive Order 11478 (i.e., discrimination in the competitive services) applied immediately, the federal contractor protections were not applicable until December 9, 2014, when the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its Final Rule Implementing Executive Order 13672.11 The Final Rule, which was not subject to notice and comment12 came into effect on April 8, 2015, provides that companies who violate OFCCP rules by discriminating on the basis of sexual orientation or gender identity run the risk of being declared ineligible to receive federal contracts.13 The Final Rule does not require contractors to conduct data analysis regarding sexual orientation or gender identity of their applicants or employees, nor

11 Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors, 79 Fed. Reg. 72,985 (Dec. 9, 2014) (to be codified at 41 C.F.R. pts 60–1, 60–2, 60–4, and 60– 50).

12 In eschewing the notice and comment period, the Department of Labor noted that its approach was consistent with agency precedent under other presidential administrations, including earlier changes to the same regulations. OFCCP, for example, proceeded to a final rule without first giving public notice and taking comment when Executive Order 11246 was amended in 2002 by President Bush’s Executive Order 13279, which added a religious exemption to Executive Order 11246. The Department of Labor noted that Executive Order 13672 was clear about the steps to be taken and left no discretion to the agency regarding the manner in which it should proceed, a set of circumstances which empowers the agency to publish final rules without prior notice and comment to make a required change to conform a regulation to the enabling authority (here, Executive Order 13672). Id. at 79 Fed. Reg. 72,987.

13 The Final Rule will affect existing federal contracts only if contractors and contracting agencies modify those contracts on or after the effective date of the Final Rule. Id. at 79 Fed. Reg. 72,985. In other words, the Final Rule will not independently cause any existing contracts to be modified absent contractual changes on the part of the parties thereto.

23 does it require contractors to collect information about applicants’ or employees’ sexual orientation or gender identity. However, the Final Rule does not prohibit a contractor from questioning applicants and employees to provide this information voluntarily, although asking such questions could be prohibited by state or local law, and a contractor may not use any information gathered from such inquiries to discriminate against an applicant or employee based on sexual orientation or gender identity. Federal contracting agencies also must include gender identity and sexual orientation as prohibited bases of discrimination under the Equal Opportunity Clause included in federal contracts.14

Importantly, Executive Order 13672 does not affect the existing exemption for religiously- affiliated federal contractors from Executive Order 11246, which President George W. Bush added in 2002 via Executive Order 13279. President Bush’s order provides that religiously affiliated contractors (which are defined to include religious corporations, associations, educational institutions, or societies) can legally favor individuals of a particular religion when making employment decisions without violating Executive Order 11246. Executive Order 13279 does not require that contractors obtain pre-approval to invoke the religious exemption, although cautious contractors tend to submit written exemptions requests to OFCCP’s Division of Program Operations and set forth the basis for the exemption in writing.

V. State-Wide Protections for LGBT Workers

While Title VII does not expressly provide federal protections from sexual orientation and gender identity discrimination in the workplace, LGBT persons fare better under a variety of more protective state laws. At present, 22 states and D.C. have statutes prohibiting employers from discriminating on the basis of an employee’s sexual orientation, while 19 states and D.C. prohibit discrimination on the basis of gender identity or expression. Those states, and the accompanying statutory citations, are as follows:15

: Cal. Gov. Code § 12940, protecting employees from discrimination on the basis of sexual orientation and gender identity and expression.

14 Each contracting agency in the Executive Branch of federal government must include the equal opportunity clause in each of its nonexempt government contracts. This clause requires a contractor to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to certain protected statuses (which Executive Order 13672 amended to include sexual orientation and gender identity). The inclusion of this clause in federal contracts makes equal employment opportunity and affirmative action critical elements of a contractor’s agreement with the U.S. government. A contractor’s failure to comply with the non-discrimination or affirmative action provisions is deemed to be violation of the contract. See 41 C.F.R. § 60-1.4.

15 See U.S. Government Accountability Office, Update on State Statutes and Administrative Complaint Data on Employment Discrimination Based on Sexual Orientation and Gender Identity (2013), available at http://www.gao.gov/assets/660/656443.pdf (compiling this information and noting the input of state officials regarding their enforcement practices and interpretations of state employment discrimination statutes).

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 Colorado: Colo. Rev. Stat. § 24-34-402, protecting employees from discrimination on the basis of sexual orientation, and Colo. Rev. Stat. §§ 24-34-401(7.5) and 24-34-402, protecting employees from discrimination on the basis of “transgender status.”

 Connecticut: Conn. Gen. Stat. § 46a-81c, protecting employees from discrimination on the basis of sexual orientation, and Conn. Gen. Stat. § 46a-60, protecting employees from discrimination on the basis of “gender identity or expression.”

 Delaware: 19 Del. C. § 711, protecting employees from discrimination on the basis of sexual orientation and gender identity.

 District of Columbia: D.C. Code § 2-1402.11, protecting employees from discrimination on the basis of sexual orientation and “gender identity or expression.”

: H.R.S. § 378-2, protecting employees from discrimination on the basis of sexual orientation and “gender identity or expression,” the latter of which constitutes a form of sex discrimination within the meaning of the law.

: §§ 775 ILCS 5/1-103(O-1) and (Q), 5/2- 102(A), (B) and (C), protecting employees from discrimination on the basis of sexual orientation and gender identity or expression; sexual orientation discrimination is defined to include “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”

: Iowa Code § 216.6, protecting employees from discrimination on the basis of sexual orientation and gender identity.

: 5 M.R.S. §§ 4552, 4553(9-C) and (10), 4571, and 4572, protecting employees from discrimination on the basis of sexual orientation and gender identity, as the former is defined to include “gender identity or expression.”

 Maryland: Md. Code Ann., State Gov’t. §§ 20-601-609, protecting employees from discrimination on the basis of sexual orientation and gender identity.

: M.G.L. c. 151B, § 4(1) and (3), protecting employees from discrimination on the basis of sexual orientation and gender identity.

: M.S.A. § 363A.08, protecting employees from discrimination on the basis of sexual orientation, and M.S.A. §§ 363A.03, Subd. 44 and 363A.08, protecting employees from discrimination on the basis of gender identity; “sexual orientation” is defined to include “having or being

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perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”

 Nevada: N.R.S. §§ 233.010 and 613.330, protecting employees from discrimination on the basis of sexual orientation and “gender identity or expression.”

 New Hampshire: N.H. R.S.A. §§ 354-A:6 and 354-A:7, protecting employees from discrimination on the basis of sexual orientation only.

: N.J.S.A. §§ 10:2-1, 10:5-3, 10:5-4, 10:5-6, 10:5-8, and 10:5- 12, protecting employees from discrimination on the basis of sexual orientation and “gender identity or expression.”

 New Mexico: N.M. Stat. Ann. § 28-1-7, protecting employees from discrimination on the basis of sexual orientation and gender identity.

 New York: N.Y. Executive Law § 296, protecting employees from discrimination on the basis of sexual orientation only.

 Oregon: ORS §§ 659A.006 and 659A.030, protecting employees from discrimination on the basis of sexual orientation, and ORS §§ 174.100, 659A.006, and 659A.030, protecting employees from discrimination on the basis of gender identity; “sexual orientation” is defined to include “an individual’s . . . gender identity, regardless of whether the individual’s gender identity, appearance, expression, or behavior differs from that traditionally associated with the individual’s sex at birth.”

 Rhode Island: R.I. Gen. Laws §§ 28-5-3 and 28-5-7, protecting employees from discrimination on the basis of sexual orientation and “gender identity or expression.”

: Utah Code Ann. § 34A-5-106, effective May 12, 2015, protecting employees from discrimination on the basis of sexual orientation and gender identity.

 Vermont: 21 V.S.A. § 495, protecting employees from discrimination on the basis of sexual orientation and gender identity.

 Washington: Rev. Code Wash. (ARCW) §§ 49.60.030 and 49.60.180, protecting employees from discrimination on the basis of sexual orientation, and Rev. Code Wash. (ARCW) §§ 49.60.030, 49.60.040(26), and 49.60.180, protecting employees from discrimination on the basis of gender identity; “sexual orientation” is defined to include “ or identity.” “Gender expression or identity” is in turn defined as “having or being perceived as having a gender identity, self-image, appearance,

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behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”

: Wis. Stat. §§ 111.31 and 111.36(1)(d), protecting employees from discrimination on the basis of sexual orientation only.

In addition, public employers in the following eight states are currently subject to executive orders, administrative orders, or personnel regulations that prohibit discrimination against public employees based on sexual orientation and gender identity: Delaware; ; ; Kentucky; Massachusetts; Michigan; New York; and Pennsylvania. Further, there are four states that currently prohibit discrimination against public employees on the basis of sexual orientation alone: Arizona; Missouri (state executive branch employees only); ; and Ohio. State employees in the following 23 states and the District of Columbia are entitled to domestic partner benefits: Alaska; Arizona; California; Colorado; Connecticut; Delaware; District of Columbia; Hawaii; Illinois; Iowa; Maine; Maryland; Michigan; Montana; Nevada; New Jersey; New Mexico; New York; Oregon; Pennsylvania; Rhode Island; Vermont; Washington; and Wisconsin. State employees in three states are entitled to benefits based on marriage, where same-sex spouses are eligible for spousal benefits: Massachusetts; Minnesota; and New Hampshire. Finally, state courts, commissions, or attorneys general have interpreted existing law to include some protection against discrimination for transgender persons in Florida and New York.16

VI. The Employment Non-Discrimination Act

In light of the still evolving jurisprudence of Title VII’s prohibition on sex discrimination, it is unsurprising that advocates for LGBT equality have sought more explicit statutory protections for fairness in the workplace. The Employment Non-Discrimination Act (ENDA), a proposed amendment to Title VII that would include sexual orientation and gender identity as protected statutes, is one such anti-discrimination measure that has come closest to becoming federal law. The version of ENDA that passed the Senate and languished in the House during the prior (113th) session of Congress describes the legislation’s intention to “address the history and persistent, widespread pattern of discrimination, including unconstitutional discrimination, on the bases of sexual orientation and gender identity by private sector employers and local, State, and Federal government employers;” to “provide an explicit, comprehensive Federal prohibition against employment discrimination on the bases of sexual orientation and gender identity, including meaningful and effective remedies for any such discrimination;” and to “invoke congressional powers, including the powers to enforce the 14th Amendment to the Constitution, and to regulate interstate commerce pursuant to section 8 of article I of the Constitution, in order to prohibit employment discrimination on the bases of sexual orientation and gender identity.”17 ENDA would prohibit a covered employer from discriminating against a covered employee for actual or

16 See Campaign, Maps of State Laws and Policies, available at: http://www.hrc.org/state_maps.

17 Text of the proposed bill is available at https://www.congress.gov/bill/113th-congress/senate- bill/815/text.

27 perceived sexual orientation or gender identity and from retaliating against employees who opposed unlawful sexual orientation or gender identity discrimination or participated in proceedings relating thereto. ENDA defines sexual orientation to mean “homosexuality, , or ” and gender identity to mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”

A. ENDA’s Legislative History

ENDA has endured a long and tortured legislative history on its yet-to-be-completed journey to becoming federal law. While various LGBT civil rights bills were introduced in Congress as early as the early 1970s, the history of modern versions of ENDA begins the mid- 1990s:18

 1994: Federal legislators first introduce ENDA in the 103rd Congress; the Senate version of ENDA (S. 2238) enjoys the support of 30 co-sponsors, while the House of Representatives version (H.R. 4636) has 137 co- sponsors. This version of ENDA, and all subsequent versions prior to 2007, includes only sexual orientation as a protected status, not gender identity or expression. The Senate’s Labor and Human Resources Committee holds its first legislative hearings on ENDA in 1994 (S. Hrg. 103-703). Congressional leadership does not bring the legislation to the floor for a vote, however.

 1995: Legislators introduce ENDA in the 104th Congress as S. 932 (with 30 co-sponsors) and H.R. 1863 (with 142 co-sponsors), with no vote occurring in either chamber during the year.

 1996: The Government Programs Subcommittee of House Committee on Small Business holds the first U.S. House of Representatives hearings on ENDA. In the Senate, the first floor vote on ENDA passage is held, with the bill (S. 2056) being rejected 50-49 (Roll Call No. 281, 104th Congress).

 1997: Legislators introduce ENDA in the 105th Congress (S. 869, with 34 co-sponsors, and H.R. 1858, with 160 co-sponsors). The Senate’s Labor and Human Resources Committee holds additional hearings on ENDA (S. Hrg. 105-279), but no floor vote is held.

 1998: After President Clinton signs Executive Order 13087 (which, as discussed above, added sexual orientation to the list of statuses protected under Executive Order 11478), the U.S. House of Representatives rejects the anti-LGBT “Hefley Amendment” to the Commerce, Justice, State

18 See , Employment Non-Discrimination Act: Legislative Timeline, available at http://www.hrc.org/resources/entry/employment-non-discrimination-act-legislative-timeline.

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appropriations bill for Fiscal Year 1999. The amendment would have prohibited the use of federal funds to enforce President Clinton’s executive order, and failed by a vote of 176-252 (Roll Call No. 398).

 1999: ENDA is introduced in the Senate and the House of the 106th Congress (S. 1276 with 36 co-sponsors and H.R. 2355 with 173 co- sponsors, respectively), but the leadership declines to hold any floor votes on the legislation.

 2001: ENDA is again introduced in the Senate and the House of the 107th Congress. Although no floor vote is held, the volume of co-sponsors of the respective bills have increased substantially since it was last introduced in 1999 (S. 1284 with 44 co-sponsors, and H.R. 2692 with 193 co-sponsors).

 2002: The Senate’s Health, Education, Labor and Pensions Committee holds hearings on ENDA and reports the bill favorably (S. Hrg. 107-307, committee report No. 107-341), which is thereafter placed on the Senate’s legislative calendar (Calendar No. 763). No floor vote is held, however.

 2003: Legislators of the 108th Congress introduce ENDA of 2003 without holding further hearings or votes on the bill (S. 1705 with 43 co-sponsors and H.R. 3285 with 180 co-sponsors).

 2007: After several years of Republican control of Congress and no further movement on ENDA, Democrats retake control of Congress and introduce ENDA in the 110th Congress. The initial House version of the bill (H.R. 2015 with 184 co-sponsors) is the first version of ENDA to include sexual orientation and gender identity as protected statuses. The House’s House Education and Labor Subcommittee on Health, Employment, Labor, and Pensions holds hearings on the legislation, but the committee ultimately adopts a sexual orientation-only version of ENDA (H.R. 3685), which is favorably reported to the floor of the House (H. Rept. 110-406). The House holds its first floor vote on ENDA (inclusive of sexual orientation protections only), which passes by a vote of 235-184 (Roll Call No. 1057). The Senate’s Democratic leadership places the bill on the Senate’s calendar (Calendar No. 479) without taking further action in 2007.

 2008: The House’s Education and Labor Committee holds hearings on workplace discrimination against transgender people, but no further legislative action is taken on ENDA.

 2009: ENDA is introduced in the 111th Congress with a record level of co- sponsorship support (S. 1584 with 45 co-sponsors and H.R. 3017 with 203 co-sponsors) inclusive of sexual orientation and gender identity employment protections. Both the House Education and Labor Committee and the Senate Health, Education, Labor and Pensions Committee hold

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hearings on ENDA, but Congressional leadership does not bring the bills to the floor for votes.

 2011: An inclusive ENDA is introduced in the 112th Congress with diminished Congressional support, owing to Republican gains in Congress (S. 811 has 41 co-sponsors and H.R. 1397 has 160 co-sponsors).

 2012: The Senate’s Health, Education, Labor and Pensions Committee holds a hearing on ENDA, and for the first time invites a transgender witness to testify.

 2013: ENDA (inclusive of sexual orientation and gender identity employment protections) is introduced before the 113th Congress (S. 815 and H.R. 1755). The Senate’s Health, Education, Labor and Pensions Committee reports the bill favorably (S. Rept. 113-105). ENDA is brought to the floor for a vote, and, on November 7, 2013, the bill easily passes the Senate, 64-32.

 2014: The version of ENDA passed by the Senate (inclusive of sexual orientation and gender identity employment protections) is referred to the House’s Subcommittee on Workforce Protections, which the Republican leadership thereafter tables. The majority of prominent LGBT civil rights groups withdraw support for ENDA in the wake of Hobby Lobby. In September 2014, a discharge petition (which would force a floor vote on ENDA in the House) began to circulate, but currently lacks the requisite support of a majority of the House. In December 2014, six of the eight Republican co-sponsors of ENDA asked House Speaker to bring ENDA to a vote as part of a national defense authorization bill before the conclusion of the 113th Congress. The House Rules Committee eventually voted 7 to 3 to prevent ENDA from being added as an amendment to this bill.

B. ENDA’s Religious Exemptions and the LGBT Community’s 2014 Withdrawal of Support

In its current iteration, Title VII exempts religious employers from the law’s prohibition of discrimination on the basis of religion, allowing those employers to express sincerely held religious preferences in structuring their workforce, and as provided in Sections 702(a) and 703(e) of the statute. However, religiously-affiliated employers cannot invoke those exemptions to freely discriminate against their employees on the basis of race, sex, national origin, age, disability, or genetic information. Under the latest version of ENDA passed by the Senate in November 2013, sexual orientation and gender identity would not join those protected statuses, as the bill imports Title VII’s exemption for religious employers, including any “religious corporation, association, or society” and “organization that is a school, college, university or other educational institution or institution of learning if the organization is, in whole or in part, owned, supported, controlled, or managed by a religious corporation, association, or society; or the curriculum of the

30 organization is directed toward the propagation of a religion.”19 As a result, LGBT employees of religious organizations would not be protected under ENDA in ways that Title VII protects other categories of employees in these same workplaces; this discrepancy creates the unavoidable impression that discrimination against LGBT workers is more acceptable, at least in certain situations, than discrimination against African-American or female workers.

Not surprisingly, ENDA’s religious exemptions (born of political compromise) distressed many LGBT rights activists, who resented the accompanying implications of “second-class citizen” status for LGBT persons and feared that religiously-affiliated organizations would invoke the exemptions gratuitously, so as to freely discriminate against LGBT persons in the workplace. The impact of such religious exemptions could be far reaching, as religiously-affiliated employers include non-profit organizations associated with churches, retirement homes operated by religiously-affiliated entities, media outlets associated with religions, religiously-affiliated elementary schools and universities, and non-profit medical centers with religious affiliation.

The troubling arrival of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), discussed further in Section VII, provided additional cause for LGBT activists to be wary of ENDA’s religious exemptions, and ultimately prompted several major LGBT rights organizations – including the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, , the National Center for Lesbian Rights and , and the National Gay and Lesbian Task Force – to withdraw their support for ENDA. Hobby Lobby appeared to create a broad exemption from federal regulations for businesses holding a belief that compliance would compromise their religious faith. In a joint press statement dated just weeks after the Hobby Lobby decision was issued, the LGBT rights organization groups listed above explained their withdrawal of support in light of the precedent:

The provision in the current version of the Employment Non-Discrimination Act (ENDA) that allows religious organizations to discriminate based on sexual orientation and gender identity has long been a source of significant concern to us. Given the types of workplace discrimination we see increasingly against LGBT people, together with the calls for greater permission to discriminate on religious grounds that followed immediately upon the Supreme Court’s decision last week in Burwell v. Hobby Lobby, it has become clear that the inclusion of this provision is no longer tenable. It would prevent ENDA from providing protections that LGBT people desperately need and would make very bad law with potential further negative effects. Therefore, we are announcing our withdrawal of support for the current version of ENDA.20

Not all LGBT rights organizations immediately abandoned ENDA, however. The Human Rights Campaign – the nation’s largest LGBT rights organization, which arguably possesses the greatest degree of “insider” access to members of Congress – charted a middle course and continued to support the version of ENDA that passed the Senate, while also continuing to

19 ENDA, S.18, 113th Cong. §6; 42 U.S.C. § 2000e–2(e). 20 See, e.g., ACLU Withdraws Support for ENDA (July 8, 2014), available at https://www.aclu.org/news/aclu-withdraws-support-enda.

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advocate for a “narrower” religious exemption. In a press statement issued by the organization’s president just two days after the joint statement of the support-withdrawing organizations was issued, the Human Rights Campaign restated its commitment to the bill:

HRC supports the Employment Non-Discrimination Act for a very simple reason. It will guarantee millions of LGBT people in all 50 states explicit, reliable protections from discrimination in the workplace. We call on our allies in Congress to improve this bill’s overly broad religious exemption. A strong ENDA is worth fighting for because we cannot ignore the urgent need of countless LGBT people who do not have the luxury of waiting for these protections.21

C. The Equality Act

Despite the Human Rights Campaign’s ostensible support of the limited employee protections set out by ENDA, it also pursued a comprehensive LGBT civil rights bill that would bar discrimination against LGBT persons in housing, public accommodations, credit, and education, as well as employment. Other LGBT organizations have also joined the push for a comprehensive bill as an alternative to the compromised ENDA bill from which they have withdrawn support. On July 23, 2015, Senators (D-OR), (D-WI), and Cory Booker (D-NJ), as well as Representative (D-RI) introduced the Equality Act (H.R. 3185 and S. 1858), which would amend several civil rights statutes to prohibit sex, sexual orientation, and gender identity discrimination in employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. The bill had over 200 cosponsors when it was introduced. As of October 2, 2015, the bill has not had a committee hearing in either the House or the Senate.

The Equality Act differs significantly from ENDA in that it explicitly forbids the invocation of the Religious Freedom Restoration Act (RFRA) to override any of the protections provided by the legislation, thus preventing the application of Hobby Lobby to any prospective religious freedom claims. This provision appears to have been critical to securing the support of LGBT organizations that abandoned their support of ENDA because of that legislation’s religious exemptions. Although the Human Rights Campaign has yet to officially abandon its support of ENDA, its website’s section on federal legislation now features the Equality Act, but not ENDA,22 indicating that it is putting its advocacy resources behind the Equality Act as a solution to the problem of discrimination against LGBT people in the workplace and elsewhere.

VII. Hobby Lobby and the Use of “Religious Liberty” to Attack LGBT Rights

As support for LGBT equality has grown over the past decades to include the extension of basic legal protections, so too has the intensity and creativity of opposition to this change. The most controversial, and thus far effective, challenge to legal equality for LGBT individuals is unquestionably the use of religious freedom as the basis of an equally compelling “right” to

21 Why HRC Supports a Comprehensive LGBT Civil Rights Bill (July 9, 2014), available at http://www.hrc.org/blog/entry/why-hrc-supports-a-comprehensive--civil-rights-bill.

22 See http://www.hrc.org/resources/entry/federal-legislation.

32 discriminate. Most notably, the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), raised the portent of significant risks to workplace protections for LGBT people. In Hobby Lobby, the Court’s conservative members (Justices Alito, Roberts, Thomas, and Scalia) and Justice Kennedy comprised a 5-4 majority, holding that federal regulations implementing the Affordable Care Act that mandate the provision of contraceptives through employer provided health insurance violated the federal Religious Freedom Restoration Act of 1993 (RFRA). The Court found that RFRA applied to closely-held private corporations claiming a faith-based opposition to contraception and abortion, and that the government’s contraception mandate substantially burdened the corporations’ exercise of religion. The dissent authored by Justice Ginsburg criticized the majority’s “radical” willingness to allow commercial enterprises to depart from the law, with conduct that has profound impact on the third parties that do not share the corporation’s underlying religious beliefs. Id. at 2787.

Since Hobby Lobby, there have been other developments that give credence to fears that its reasoning could impact other regulations, including those intended to prevent discrimination in the workplace. The majority opinion in Obergefell, for example, while not explicitly taking up the issues presented in Hobby Lobby, conceded the importance of respecting conflicting religious liberties. The key passage on this issue states:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

Obergefell, 135 S. Ct. at 2607.

Justice Kennedy’s opinion focuses here on the widely accepted right of religious organizations and persons to teach principles that are in opposition to same-sex relationships, in contrast to the equal protection guaranteed by the state itself. Advocates of LGBT equality are rightly concerned, however, that Justice Kennedy’s prior support of corporate “religious freedom” in Hobby Lobby indicates a rather stark, potentially broad double standard, under which private actors are essentially excused for discriminatory conduct that society has deemed fundamentally unjust for other groups and unacceptable on the part of the government in the context of marriage and other areas. Indeed, activist evangelical Christians and their political allies have rallied to this position since Windsor and Obergefell, as illustrated by the slew of states considering and even passing state Religious Freedom Restoration Act laws,23 and the support given to Rowan County, Kentucky Clerk Kim Davis, who refused to issue marriage licenses to same-sex couples despite a

23 http://www.ncsl.org/research/civil-and-criminal-justice/2015-state-rfra-legislation.aspx.

33 court order. These developments suggest the strategic path ahead for opponents to LGBT equality, and the power of judicial ambivalence to encourage resistance to equal rights.

Should courts continue to signal tolerance for religion-based anti-equality arguments, it could have grave consequences for any antidiscrimination laws that seek to protect LGBT workers. It takes no great imagination to envision a case in which a corporation with devout Christian owners, like Hobby Lobby, challenges a federal antidiscrimination law that may come into existence soon – such as the Equality Act or a re-interpreted Title VII – as substantially burdening their religious beliefs by forcing them to give equal treatment to LGBT workers. Indeed, in something of an echo of Justice Scalia’s impassioned warnings about the expansion of LGBT rights that he feared was building years ago, Justice Ginsburg’s dissent in Hobby Lobby raised the specter of the contraction of these rights by people using religious belief as grounds to exempt themselves from antidiscrimination laws. Hobby Lobby, 134 S. Ct. at 2804-05. In response to this concern, Justice Alito’s majority opinion retorted that such fears were unfounded:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Id. at 2783. While this passage indicates that Hobby Lobby cannot be used as a shield against antidiscrimination laws, it notably focuses on race, a category that is considered suspect under the Equal Protection Clause, and is explicitly listed in Title VII. It remains to be seen whether the Hobby Lobby majority would extend the “freedom” afforded to companies that wish deny contraceptives to their employees on religious grounds to companies that also wish to deny equal workplace rights to their LGBT workers. A case raising this very issue seems inevitable before long, as advocates for, and opponents to, LGBT equality continue to clash in the courtroom over these vitally important civil rights.

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