VII and Employment Discrimination in the LGBTQ+ Communities of Texas and Oregon

AN ABSTRACT OF THE THESIS OF

Trystan Denae Melancon for the degree of Master of Arts in Interdisciplinary Studies in Human Development and Family Studies, Political Science, and Sociology presented on June 9, 2021

Title: Title VII and Employment Discrimination in the LGBTQ+ Communities of Texas and Oregon

Abstract approved: ______Tasha Randall Galardi

The primary goal of this study is to illuminate the voices of LGBTQ+ individuals in Oregon and Texas who were victims of workplace discrimination due to their LGBTQ+ status in order to highlight the necessity of LGBTQ+ inclusive employment discrimination legislation. This study used qualitative research methods to gather data from existing news articles, interviews, blogs, court testimonials, narratives, and magazine articles that contain direct quotes from LGBTQ+ individuals living in both Texas and Oregon who have experience with being out about their LGBTQ+ status in their workplaces. The findings of this study were evaluated based on categories that define the types of discrimination these individuals faced and the influence it had on their lives both in and out of work. This analysis and its findings add to the collection of literature that advocates for further protections for the LGBTQ+ community in not only employment discrimination but all aspects of their lives. The overall findings of this study show that many LGBTQ+ individuals still experience workplace discrimination despite the various forms of legal protections that are in place and should prevent this from happening.

Title VII and Employment Discrimination in the LGBTQ+ Communities of Texas and Oregon

by Trystan Denae Melancon

A THESIS

submitted to

Oregon State University

in partial fulfillment of the requirements for the degree of

Master of Arts in Interdisciplinary Studies

Presented June 9, 2021 Commencement June 2022

Master of Arts in Interdisciplinary Studies thesis of Trystan Denae Melancon presented on June 9, 2021

APPROVED:

Major Professor, representing Human Development and Family Studies

Director of the Interdisciplinary Studies Program

Dean of the Graduate School

I understand that my thesis will become part of the permanent collection of Oregon State University libraries. My signature below authorizes release of my thesis to any reader upon request.

Trystan Denae Melancon, Author

ACKNOWLEDGEMENTS

I would like to take this time to thank all of the wonderful people who have put their time and love into me throughout the course of this project and degree.

Thank you to my parents, Amanda and Casey, who have continually supported me through all of my endeavors and done everything in their power to put me in a position to succeed.

Thank you to my brother, Mason, who has and always will be my best friend that I know I can count on when everything else is falling apart.

Thank you to my friends back home in Texas and my newfound friends in Oregon all of the countless others who have continued to reach out their hands in support of my athletic and academic endeavors.

Thank you to my committee for their continued support and patience throughout these last 2 years.

Finally, I would like to thank Lucy Schaefer.

TABLE OF CONTENTS

Page

1. Introduction...………………….………………………………………………………1

2. Overview of Policy and Legal History Relating to Title VII and the LGBTQ+ Community……...……………………………………………………………………..3

3. Theory.………….…………………………………………………………………….12

4. Methods………………………………………………………………………………18

5. Analysis……………………………………………………………………………….23

6. Discussion………………………………………………………………...... 35

7. Conclusion...………………………………………….…………………………….…40

8. References...…………………………………………………………………….….….42

DEDICATION

I would like to dedicate this thesis to Lucy Nicole Schaefer. Although you did not make it to see me finally complete it, I know you would have been so proud of the work that I did. You were always my number 1 fan, and I will always be yours. I love you and miss you always.

1. Introduction

In 2020, suicide was the tenth leading cause of death in the United States (Ahmad, 2021).

Gay, lesbian, bisexual, transgender, and queer identified (LGBTQ) individuals are two times as likely to report suicidal ideation and have higher rates of suicidal attempts than their heterosexual and cisgender counterparts (Sutter & Perrin, 2016). In the LGBTQ+ community, mental health disorders, suicidal thoughts, and substance abuse disorders are more prevalent when compared to those who are not from sexual minority groups (Sutter & Perrin, 2016). Discrimination has consistently been implicated as a major stressor correlated with adverse psychological effects and

LGBTQ+ individuals are particularly vulnerable to daily exposure to social stress and discrimination based on their LGBTQ+ status (Sutter & Perrin, 2016). In November of 2020, the FBI disclosed unacceptably high levels of LGBTQ+ related hate crimes which represent 16.7% of all hate crimes making it the third largest category, after race and religion (Ronan, 2020). The year 2020 also saw the fatal shootings of at least 44 transgender or gender non-conforming individuals (Human Rights

Campaign, 2020b). Most of these individuals were either Black or Latinx transgender women.

Unfortunately, these statistics on discrimination and death are incomplete because it is too often that these cases go unreported or are misreported in ways unfavorable to the LGBTQ+ victims (Human

Rights Campaign, 2020b). These instances of discrimination include access to housing, medical costs especially in the transgender community, estate planning, family planning, and employment protections (Cruz, 2020).

In 1964, the Civil Rights Act was passed giving rights and liberties to minority groups and underprivileged communities that they had never had before (U.S. Equal Employment Opportunity

Commission, n.d.). This historic sweeping legislation changed the way American society operates and has since provided significant judicial and legislative backing for these groups (History.com

Editors, 2010). One group that was left out of this influx of civil rights was the LGBTQ+ 2 community. This research paper seeks to explore the way that the absence of explicit protections for the LGBTQ+ community in Title VII of the Civil Rights Act of 1964, the section related to employment discrimination, has impacted this community. In order to do so, this project focused on comparing the employment and workplace discrimination experiences of LGBTQ+ individuals in

Oregon vs. Texas as they relate to an individual’s LGBTQ+ status.

Using qualitative research methods, this study gathered data from existing news articles, interviews, blogs, court testimonials, narratives, and magazine articles that contain direct quotes from LGBTQ+ individuals living in both Texas and Oregon who have experience with being out about their LGBTQ+ status in their workplaces. The findings of this study were evaluated based on categories that define the types of discrimination these individuals faced and the influence it had on their lives both in and out of work. This research is important because a stable job and source of income are key factors that impact the LGBTQ+ community and their ability to avoid or overcome major barriers that are unique to this specific minority group (Cruz, 2020). This analysis and its findings add to the collection of literature that advocates for further protections for the LGBTQ+ community in not only employment discrimination but all aspects of their lives.

2. Overview of Policy and Legal History Relating to Title VII and the LGBTQ+ Community

Title VII of the Civil Rights Act of 1964 states that it is unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin (Civil Rights Act, 1964). This section of the

Civil Rights Act served as Congress’s solution to eliminating discrimination and “undue hardship” in places of employment (Sanders, 2016). It also established the Equal Employment Opportunity

Commission (EEOC) which is responsible for enforcing federal laws that make it illegal to discriminate against job applicants or employees on the basis of their race, color, religion, sex, national origin, age disability or genetic information. All employees who are alleging Title VII violations must file their complaint with the EEOC before filing a charge in federal court (Sanders,

2016). The EEOC is also in charge of regulating and clarifying Title VII and defining what discrimination based on the characteristics listed in the act looks like (Sanders, 2016). The Civil

Rights Act’s vague use of the word “sex” left a lot up to speculation and interpretation as far as how to define sex and who was really protected by this legislation.

In 1989, Price Waterhouse v Hopkins acted as preliminary landmark case for LGBTQ+ rights in the workplace. While working for the Price Waterhouse accounting firm, Ann Hopkins was repeatedly passed up for a promotion on the grounds that she did not walk, talk, or dress femininely enough in the eyes of her male co-workers (Brennan, W. J. & Supreme Court of The United States,

1988). Ann Hopkins was a heterosexual woman but making her sex-stereotyping claim set the stage for the future usage of sex-based stereotyping as a form of defense for LGBTQ+ individuals who have experienced discrimination but do not live in a time or place where those protections were included in Title VII (Atwell, 2021). This case referred to sex and gender as though they were synonymous (Parrington, 2019). Today, these two terms are viewed as separate terms with sex being 4 biologically based and gender referring to the social construction or expression of identity

(Parrington, 2019). After Price Waterhouse, sex discrimination was not merely defined as being targeted at biological designations between men and women but instead got at the entire spectrum of discrimination based on sex which included gender stereotypes (Parrington, 2019). The court decided that, based on Title VII, an employer cannot discriminate because of the failure of an employee to conform to gender stereotypes (Anderson, 2019; Parrington, 2019). This decision did not necessitate a blindness to sex but instead forbid sex from being used to create unfairness and disparate treatment of men and women (Anderson, 2019).

1990s – Testing the Waterhouse

Since Price Waterhouse, LGBTQ+ plaintiffs have relied on this decision to argue that discrimination based on sexual orientation or gender identity is in fact discrimination on the basis of non-compliance with gender stereotypes and thus covered under Title VII’s sex clause (Cleghorn et al., 2018). While Price Waterhouse was a definite win for the LGBTQ+ community, it did not come close to solving the lack of protections for this community from workplace discrimination under

Title VII. The use of sex-stereotyping as a course of legal action for LGBTQ+ individuals requires the plaintiff to delicately craft their claim in a way in which they will fit perfectly into the sex- stereotype mold (Dale, 2011). This leaves a very narrow avenue for justice that is full of loopholes that favor the corporations over the plaintiff (Dale, 2011).

In 1995 Bill Clinton issued Executive Order # 12968 which forbid the refusal of access to classified government information based on sexual orientation among the list of other categories

(race, color, religion, sex, national origin, etc.) (Clinton, 1995). This executive order was the first mention of sexual orientation in federal legislation. Three years later, former President Clinton issued another executive order which extended even further forbidding discrimination in federal employment based on sexual orientation (Clinton, 1998). Before this order, civilian employees could 5 be fired from federal service due to “sexual perversion” or other factors related to their sexual orientation or gender identity (Gates & Saunders, 2016).

Also in 1998 was the landmark Supreme Court decision Oncale v. Sundowner Offshore

Services, Inc. in which the Supreme Court unanimously decided that the prohibition of sex discrimination set out by Title VII does in fact apply to same sex-sexual harassment (Scalia, A. &

Supreme Court Of The United States, 1997). The court held that while Title VII does not necessarily prohibit all verbal or physical harassment in the workplace, it does bar all forms of discrimination based on sex (Parrington, 2019). This ruling took a similar stance as Price Waterhouse in that it forbids double standards for men and women in the workplace (Anderson, 2019). While Title VII requires neither asexuality nor androgyny, it does require neutrality from one’s place of employment

(Anderson, 2019). With that in mind, the term “sex” was and has continued to be used vaguely in place of sexual orientation or gender identity because the use of this sort of language was, and sometimes still is, classified as “too progressive” (Baumle et al., 2019). Despite the fact that the

LGBTQ+ community is still not explicitly protected by this ruling, Justice Scalia held that the court was going beyond the original intent of Title VII’s sex discrimination clause (Parrington, 2019).

2000 to 2015 – Continued Progress ‘but for’ Bathroom Usage

Between 2000 and 2014 there were at least 15 federal court cases and a variety of congressionally proposed legislation specifically addressing LGBTQ+ protections under Title VII of the Civil Rights Act. The 2002 ruling of Centola v. Potter stated that discrimination based on sexual orientation is often, if not always, motivated by a desire to enforce heterosexually defined gender norms and heteronormativity (Cleghorn et al, 2018). This case illustrated the possibility of a Title

VII extension to protect all members of the LGBTQ+ community who were being discriminated against for their lack of conformity to heteronormative standards (Cleghorn et al., 2018). The 6 following year, Desert Palace v. Costa clarified and effectively expanded the type of evidence that can be used in sex discrimination suits where both legitimate and illegitimate rationales attempt to bolster adverse employment decisions (Muhammad, 2007). This case exemplifies “but for” causation, to be used later be used in the Bostock ruling by Justice Gorsuch, in which had an individual been of the opposite sex, the adverse employment decision would not have been made

(Muhammad, 2007). The 2004 Smith v. City of Salem, Ohio upheld the decision in Price

Waterhouse stating that discriminating against a man who wears dresses and make-up is inherently the same as discriminating against a woman because she does not wear dresses and makeup thus qualifying as sex stereotyping which is illegal under Title VII (Dale, 2011). During this time,

Democratic lawmakers began to fight for the passage of a trans-inclusive Employment Non-

Discrimination Act, or ENDA. In 2007, what was later known as the “bad ENDA”, a version of this bill was passed through the House of Representatives but failed to come to a vote in the Senate due to the removal of the gender identity clause of the bill (Reed, 2013). Bi-partisan efforts in favor of a trans-inclusive ENDA refused to pass the bill without it (Currah, 2008). Pushback from former

President George W. Bush and the religious right halted any forward progress for a more inclusive

ENDA until a more liberal president and Congress had gained power (Currah, 2008). Moving forward claims that Title VII did not protect against sexual orientation or gender identity discrimination were upheld by the fact that an ENDA including this language has failed to pass

Congress despite numerous attempts (Mitchell et al., 2014).

Another 2007 setback for LGBTQ+ rights including the ruling in Etsitty v. Utah Transit

Authority in which Krystal Etsitty was placed on leave and ultimately fired for her usage of female restrooms as a transsexual woman who still possessed her male genitalia due to lack of gender reassignment surgery funding (Dale, 2011). The ruling of this case stated that, while Price

Waterhouse may allow some LGBTQ+ individuals to sneak sexual orientation and gender identity 7 claims under Title VII through sex stereotyping, this decision was not so expansive that it granted all biological males the right to use all-female restrooms in their workplace (Dale, 2011). Schroer v.

Billington in 2008 made forward progress for the LGBTQ+ community with the court concluding that denying a job to someone for expressing their intent to transition from male to female does in fact constitute discrimination because of sex (Dale, 2011). While it may not have given protections to transgender individuals outright, it did allow for the revival of the question of gender identity being included under the umbrella of sex in Title VII (Dale, 2011). Creed v. Family Express in 2009 served to bring the court back to the same place as it was in 1989, with sex-stereotyping being the prime pathway to success in Title VII gender identity discrimination claims (Dale, 2011).

In 2011, more headway was made for the transgender community with the ruling in Glenn v.

Brumby. This case highlighted a congruence between discriminating against transgender individuals and discrimination based on gender-based behavioral norms. This means that, while transgender persons are not protected outright under Title VII, the termination of a transgender employee, or any employee, for gender non-conformity is considered unconstitutional sex discrimination (Mitchell et al, 2014). A 2012 ruling in Macy v. Holder drew a similar conclusion as it upheld that “transgender discrimination is based on sex because it is rooted in an aversion to or assumptions about biological sex characteristics” (Harvard Law Review, 2013). Overall, Glenn v. Brumby and Macy v. Holder further illuminated the lack of specific sexual orientation and gender identity protections in federal legislation (Cleghorn et al., 2018). Another effort was made to get a trans-inclusive ENDA through

Congress in 2013 and was able to make it through the Senate with a 64-32 bipartisan majority and marketed support from former President Barack Obama (Reed, 2013). This version was eventually altered to put sexual orientation in the same class as religion and thus extended a much broader discretion to religious employers to discriminate on the basis of sexual orientation (Clarke, 2015). 8

This change is ultimately what lead to the withdrawal of support from LGBTQ+ advocates and the death of the bill altogether (Clarke, 2015).

May of 2013 marked a major victory for the LGBTQ+ community with the change of gender identity disorder to its current “gender dysphoria” in the Diagnostic and Statistical Manual of

Mental Disorders (DSM) (Bailey, 2014). While not necessarily meeting the complete end goal of removing mental diagnoses related to sexual orientation and gender identity, this marked a huge step in socially destigmatizing transgender individuals as being mentally ill or “curable” (Bailey, 2014).

While the ENDA bill failed to make it through the House and no immediate progress was made, it, along with the updates to the DSM, set the stage for President Obama’s 2014 Executive Order

#13672 which saw the addition of gender identity to Clinton’s 1998 government employee discrimination order. While this extended protections for government employees in the LGBTQ+ community, the U.S. was still lacking a lasting piece of legislation that barred discrimination of all individuals in both the public and private sectors because of their sexual orientation or gender identity (Baumle et al., 2019). Despite this, in 2015 the EEOC began allowing anyone who believed they had been discriminated against because of their sexual orientation or gender identity to file sex discrimination charges under Title VII to increase protections for the LGBTQ+ community

(Baumle et al., 2019). Although this interpretation by the EEOC to include sexual orientation and gender identity under the umbrella of the sex clause of Title VII does not technically hold any force of law, it shows the agency’s willingness to protect the LGBTQ+ community in any way that they can (Sanders, 2016).

2016 to 2020 – Path to Judicial Victory

The remaining 6 years between Obama’s executive order and Bostock were marked with continued progressive action towards creating a safer society for LGBTQ+ individuals to not only exist but thrive, in part, by the EEOC. Between 2012 and 2016, case filings in states without all- 9 inclusive nondiscrimination policies saw a 10-fold increase while states with these policies doubled the number of cases they had. (Baumle et al., 2019). In 2015, the Equal Employment Opportunity

Commission (EEOC) addressed the issue of sexual orientation protections stating that it recognized

Title VII to include sexual orientation and gender identity as a part of the sex clause (Parrington,

2019). Using the same “but for sex” ideology that Gorsuch would later cite in his decision on

Bostock v. Clayton County, the EEOC stated that discrimination based on sexual orientation is the same as sex discrimination because it involves the implication of gender stereotypes which is prohibited by the Price Waterhouse decision (Parrington, 2019). Before April 2017, all courts that addressed the issue of “sex” and sexual orientation and the Civil Rights act ruled that sexual orientation is not included under the umbrella of the term “sex” (Anderson, 2019).

Both the most significant and the most recent ruling regarding sexual orientation discrimination came in June of 2020 with the summary judgment ruling in Bostock v. Clayton County Georgia

(Barnes, 2020b). Gerald Bostock is a gay man who began working for Clayton County, Georgia in

2003. Over the course of his 10-year career there, he consistently received positive performance evaluations and accolades for his hard work (Barnes, 2020b). After joining a gay recreational softball league in 2013, he began receiving criticism about his sexual orientation and identity by his supervisor and other coworkers (Barnes, 2020b). This was followed by a seemingly unnecessary internal audit of the program that Gerald managed and his eventual termination by Clayton County for “conduct unbecoming of its employees” (Barnes, 2020b). Shortly after, Bostock filed discrimination charges with the EEOC. Three years later in 2016, this case was appealed and joined with Altitude Express v. Zarda (2010) and R.G. & G.R. Harris Funeral Home v. EEOC (2013), two other cases concerning sexual orientation and gender identity workplace discrimination, in front of the Supreme Court to answer the question of whether Title VII’s discrimination because of sex clause should encompass discrimination based on sexual orientation as well. Donald Zarda was a 10 gay man who worked as a sky-diving instructor at Altitude express and was fired after referencing his sexual orientation as a comfort tactic to a female client who was worried about being strapped to a male instructor for a tandem skydive (Barnes, 2020c). Aimee Stephens worked as a funeral director at R.G. & G. R. Harris Funeral Homes, Inc. While she presented and lived as a man for most of her employment, after expressing her desire to transition from male to female, she was promptly terminated (Barnes, 2020c). Unfortunately, neither Aimee Stephens nor Donald Zarda lived to see the end of this tireless legal battle. Their families and friends, however, continued to push forward and fight for the equality they knew their loved ones deserved.

After years of fighting, a number of appeals, and countless other amici curiae from both sides of the argument, a 6-3 majority decided that yes, sexual orientation is covered under the sex category of

Title VII and additionally stated that discrimination based on sexual orientation is, by nature, gender-based discrimination which is prohibited under Title VII (Bostock v. Clayton County, 2020).

In his majority opinion, Justice Gorsuch explained that while he believed that policymakers in 1964 may not have expected Title VII to apply to the LGBTQ+ community, the court’s ruling is still valid because the language is ambiguous and does not specifically exclude LGBTQ+ individuals from these protections (Poindexter, 2020). Gorsuch used examples of “but for causation” to explain why this conclusion could be drawn from Title VII (Poindexter, 2020). While this ruling has extended the umbrella of coverage for protection from employment discrimination to LGBTQ+ members, it is only a small victory in a long war for truly inclusive legislation and explicitly stated LGBTQ+ protections.

This literature review highlights the history of Title VII and how this article of the Civil Rights

Act has been applied to the LGBTQ+ community. Moving forward, this paper will consider the history and status of Title VII as it relates to the LGBTQ+ community based on several different 11 theoretical perspectives. These theories include heteronormative societal standards, perceptions of the LGBTQ+ community, and possible solutions to Title VII’s vague “sex” category.

3. Theory

The idea of Title VII extending to LGBTQ+ individuals can be viewed from several different theoretical lenses. This section considers the idea of heteronormative based vs. sexual orientation discrimination, the idea of immutable traits, legal vs. judicial remedies, and congressional intent vs. judicial interpretation. From there these theories are evaluated based on their application to the topic of LGBTQ+ workplace discrimination and possible solutions to this issue.

Heteronormative Based v. Sexual Orientation Based Discrimination

In Price Waterhouse and Oncale, the main issue being addressed is the idea of “sex” discrimination based on societally accepted gender norms for men and women. While this is loosely applied in LGBTQ+ cases, it does not get at the heart of LGBTQ+ discrimination. When faced with disparate treatment due to their sexual orientation or gender identity, many LGBTQ+ individuals are forced to make claims related to sex stereotyping in order to seek any sort of legal remedy. While this is not necessarily a bad course of action and justice is sometimes still served, it does not actually protect LGBTQ+ individuals from being discriminated against based on their sexual orientation or gender identity. It is more of a loophole that has worked successfully in favor of the LGBTQ+ community (Connell, 2010). Anderson (2019) discusses the differences between sexism, cissexism, and heterosexism and how they can relate to discrimination in the workplace. The target of sexism is women and is known as misogyny. The target of cissexism would be transgender individuals and is knowns as transphobia. The target of heterosexism would be gay and lesbian individuals and is known as homophobia. In the case of Title VII, the main course of action has been to play on the idea of eliminating sexist practices in the workplace while steering clear of addressing cissexism or heterosexism as being valid forms of workplace discrimination. As mentioned earlier, the 2002 case, Centola v. Potter stated that discrimination based on sexual orientation is often, if not always, motivated by a desire to enforce heterosexually defined gender 13 norms and heteronormativity (Cleghorn et al., 2018). This case illustrated the possibility of a Title

VII extension to protect all members of the LGBTQ+ community who were being discriminated against for their lack of conformity to heteronormative standards but again failed to address strictly gender identity or sexual orientation discrimination (Cleghorn et al., 2018).

Discrimination in the form of prejudice may be rooted in negative stereotypes around

LGBTQ+ individuals. Stereotypes can be linked to what cognitive frameworks – what psychologists call schema – that help the brain organize and interpreted information (Cherry 2019).

Schemas act as a cognitive shortcut that allows the brain to interpret the vast amounts of information that are available to it at all times in any given environment (Cherry, 2019). While useful in some respects, schemas also tend to be a major contributor to the formation of stereotypes and difficulty retaining or accepting new information (Cherry, 2009). Brower (2009) examines the way that the perceptions of lesbian and gay male schema have influenced the courts’ ability to make rulings on desire-based sexual harassment cases. These gay and lesbian schemas linking homosexuality and predatory recruitment of non-gay persons into the “gay lifestyle” have negatively altered society’s ability to view sexual harassment or discrimination against LGBTQ+ individuals as legitimate (Brower, 2009). Some groups go so far as to think of LGBTQ+ individuals as deserving of this sort of treatment because of their sexual orientation or gender identity (Brower, 2009).

Additional schema such as the assumptions that the LGBTQ community seek special treatment in order to gain an unfair advantage or that all members of each LGBTQ+ category conform to the same stereotypes (i.e., all lesbians as “butch” or all gay men as “feminine”) produce barriers for the acceptance of more progressive legislation extending protections to this community (Brower, 2009).

Immutable Traits

On a similar wavelength as heteronormative vs. sexual orientation and gender identity discrimination is the idea of immutable traits being protected under Title VII. Clark (2015) views 14 immutable traits in two different ways. First, it is described as protection from chance or a trait that was not chosen or fixed in any way but instead related entirely to the chance of being born a certain way. Race is one of the most obvious immutable traits of this kind and one that civil rights activists have fought for decades to be considered a protected class (Clarke, 2015). The Supreme Court has traditionally viewed this type of immutability as something visible and distinguishing characteristics that can “define a discrete group” or those that their “possessors are powerless to escape or set aside” (Clarke, 2015). Green (2017) makes the argument that sexual orientation and gender identity should be treated as immutable traits in the same way that race is. The 2015 landmark decision concerning same-sex marriage, Obergefell v. Hodges, is a prime example of sexual orientation being viewed as immutable by the Supreme Court (Clarke, 2015). Individuals should not be forced to cover up or be discriminated against based on traits that they feel are central to who they are as a human and are unable to change. This, however, gets into the idea of personhood and necessitates an understanding of gender throughout society (Harris, 2009).

The second definition of immutability is described as protection from choice or something that is viewed as controllable by the individual but still incapable of being hidden (Clarke, 2015).

One reason it has taken so long for LGBTQ+ individuals to make progress in workplace protections is that, to some, they are viewed as less of a person because of their sexual orientation or gender identity and, in turn, less deserving of legal protections from discrimination (Harris, 2009). It would not necessarily be impossible for an individual to cover up or fake their gender identity or sexual orientation but doing so could require major physical change or traumatic change of identity creating an undue burden for that individual (Clarke, 2015). This second category has grown in popularity as of late because of the larger array of traits that can be covered by it such as gender identity and sexual orientation (Clarke, 2015). A problem that can arise with this second definition is in the determination of which traits are so difficult to change that they cause unnecessary hardship 15 to the individual and which ones do not. This is where the courts, legislators, and a politically polarized public opinion tend to take the most issue with the idea of immutability (Clarke, 2015).

The Implications of Shifting Theoretical Definitions for Practice

When the Civil Rights Act was passed in 1964, America and its government looked different than how we know them today. While the wording and formatting may look similar, the ideas, intentions, and objectives of a law passed in 1964 vs. a law passed in 2020 would also look very different. This is where the ideas of congressional intent vs. judicial interpretation come into play.

When a case is tried in court, it is up to the judge to decide what the lawmakers intended when they passed whatever law is being questioned in that case and apply it to the specific details of that case.

This means that even when something is not explicitly stated in law, a judge may rule that the intent of the law encompassed more than is written and extend or reduce the scope of the actual written law (Blokhina & Jurkowski, 2019). One of the biggest debates surrounding the Title VII of the Civil

Rights Act is whether or not it was intended for sexual orientation and gender identity to be included among the protected classes of people covered by that law. Still, courts are expanding the definition of “sex” within the sex-stereotyping framework thus improving the likelihood of success for LGBTQ+ plaintiffs bringing Title VII claims (Cleghorn et al., 2018). The list of protected classes included in Title VII includes some of the identities most subjected to discrimination at the time of enactment to the extent that the legislators at the time felt were worthy of protecting (Parrington,

2019). If the law were written today, it is highly possible that those included in this list of protected individuals may look differently. This brings up the question of if this was not their intention, should the Supreme Court, or any court for that matter, be allowed to change the scope of Title VII in order to keep up with societal changes in the areas that legislation lags behind. What is known is that the core purpose of Title VII was to protect the fundamental right of a person to work and provide for themselves without baseless discrimination (Parrington, 2019). This leads back to the idea above 16 of personhood and the ways in which LGBTQ+ individuals are, at times, considered less deserving of personhood status under the law because of their gender identity or sexual orientation (Harris,

2009).

Research Questions

Answering the question of whether or not the issue of LGBTQ+ protections can be solved via judicial remedies like the Bostock ruling or if this issue necessitates brand new federal legislation is one of the main purposes of this study. When considering new federal legislation as an option, legislators must decide if the addition of a sexual orientation and gender identity clause to Title VII would place an undue burden on the courts with how many lawsuits would start rolling in as a result.

Parrington (2019) makes the claim that legislation of this sort would not, in fact, place this type of burden on the court and would actually make existing cases easier to decide with the removal of vague language and need to interpret what “sex” means on a case-by-case basis. Attempts have been made in the past to pass legislation of this sort such as the Employment Non-Discrimination Act

(ENDA), but these attempts have failed to cover the LGBTQ+ community to the fullest extent possible.

The ultimate goal of employment discrimination law is to disrupt the stereotypes, stigmatizing practices, and superficial judgments that contribute to systems of inequality (Clarke,

2015). The road to truly achieving this feat would likely require a combination of many of the ideas mentioned above to work together to create a completely safe and equal workplace environment for all individuals. Workplaces would need to do a better job of creating more gender-neutral dress code policies that do not require drastic differentiation between traditionally masculine vs. feminine types of clothing. There also needs to be a final societal transition in the way sexual orientation and gender identity are viewed. While significant progress has been made, there is still a significant percentage of people who view these two qualities as choices or decisions that are to be made as opposed to 17 central parts of an individual’s identity that just exist as they are and cannot be forcibly changed. A shift of this nature would also aid in increasing the value placed in the personhood of an LGBTQ+ individual by raising them up to the same status as all other protected categories. Finally, it seems that neither a legislative solution nor judicial ruling alone could possibly completely solve the problem of LGBTQ+ employment discrimination. In order for the LGBTQ+ community to finally work with the same protection from discrimination than other minority groups are awarded, lawmakers and the courts would need to work together to create consistent policy and case decisions that uphold those protections regardless of sexual orientation or gender identity.

Based on the history of Title VII and the theories above, this paper seeks to address two main questions. First is whether or not LGBTQ+ individuals are still experiencing workplace discrimination despite the progress that has been made over the last 50+ years since the passing of the Civil Rights Act. Second is to see whether or not there will be differences in the type of discrimination faced between two states with different political, social, and LGBTQ+ norms and standards. While there are some protections and routes to legal action for workplace discrimination for the LGBTQ+ community, this does not mean that all LGBTQ+ discrimination stopped as soon as these protections became evident. Illuminating the voices of LGBTQ+ individuals who were victims of this sort of treatment serves to verify the continuously poor state of LGBTQ+ employment and workplace protections and their avenues to justice.

4. Methods

This paper seeks to answer these two research questions by bringing attention to direct experiences of workplace discrimination in the LGBTQ+ community. To answer these questions this study employed qualitative content analysis that aimed to review and analyze existing news articles, interviews, blogs, court testimonials, narratives, and magazine articles that contain direct quotes from LGBTQ+ individuals living in Texas and Oregon who have experiences with being out about their LGBTQ+ status in their workplace. This content analysis method of research is used to make replicable and valid inferences by interpreting and coding textual material (Robson &

McCartan, 2016). The lack of clear boundaries or limits in this method of analysis allows for the data to lead and determine the direction of the research making this method appealing to a topic with a wide range of narratives and stories such as LGBTQ+ employment discrimination and Title VII

(Robson & McCartan, 2016).

This portion of the study focuses on specific cases of LGBTQ+ employment discrimination between 1995 to 2020 before the Bostock v. Clayton County Supreme Court ruling. The purpose of this method of analysis is to highlight LGBTQ+ voices in regard to their experiences with employment discrimination and the impact that protections, or lack of, have on their livelihoods.

This method of analysis also provides direct proof necessitating the addition of legislation explicitly protecting LGBTQ+ individuals from employment-based discrimination related to their sexual orientation and gender identity. It gets at the idea of queer world making and meaning making which are both heavily under researched (Bailinson et al., 2020). These terms get at the idea of creating lines of identification, commonality, and intersectionality between individuals and groups of people who view themselves as separated from the general flow of society and its norms (West et al., 2013).

For the queer community this is very important for developing a sense of safety and belonging in 19 the community around them. My project seeks to add to this literature by highlighting LGBTQ+ voices directly.

Next to the legal and policy history portion of this project, the textual content analysis provides a side-by-side comparison of ways in which policy and legal protections have lagged behind the needs of a historically marginalized community of people. The former provides a legal and political history of LGBTQ+ protections from employment discrimination while the latter highlights firsthand experiences of workplace discrimination among the LGBTQ+ community while legislators try to sort out whether this group should be granted explicit protections under the law.

Focusing on Oregon and Texas

While there is notable protection against employment discrimination at the state and local levels, but it can vary drastically from state to state (Cleghorn et al., 2018). For this project, I chose to specifically focus on LGBTQ+ individuals and their experiences in Texas and Oregon because of the drastic differences in the ideological makeup between these states. For the duration of the selected time period, Texas has maintained its stance as a traditionally religiously conservative state especially when it comes to hot-button issues such as women’s and LGBTQ+ rights (Mallory et al.,

2017). Oregon on the other hand has consistently remained ahead of the national curve when it comes to protecting and producing legislation for the LGBTQ+ community (Nicola et al., 2015).

The Movement Advancement Project (MAP) is an independent nonprofit think tank that works to provide up-to-date and accurate research regarding the state of equality in all aspects of life for all individuals across the United States. According to their work on employment nondiscrimination policy, Texas receives a score of 2.25 out of 18.5 in Sexual Orientation policy and a -2.25 out of 20 in Gender Identity policy for an overall score of 0 out of 38.5 in overall protections for LGBTQ+ workers (Movement Advancement Project, n.d.). Oregon, on the other hand, ranks among the top in the country with scores of 14.5 out of 18.5 and 17 out of 20 in Sexual Orientation and Gender 20

Identity policy respectively (Movement Advancement Project, n.d.). By providing stories from states with such different political stances ideological beliefs, it highlights the fact that workplace discrimination still takes place despite the fact that Oregon has afforded protections to this community at the state level. This further necessitates federal legislation that solidifies employment discrimination protections because, despite Oregon’s status as an LGBTQ+ friendly state, workplace discrimination still takes place. The difference is, in Oregon, these individuals are capable of seeking legal remedies for their discrimination whereas, in Texas, there are very minimal options for LGBTQ+ individuals to seek justice.

The 1995 to Pre-Bostock 2020-time range was selected because of the significance of Bill

Clinton’s 1995 Executive order mentioning sexual orientation for the first time in federal legislation

(Clinton, 1995). Before this order, civilian employees could be fired for federal service due to “sexual perversion” or other factors related to their sexual orientation or gender identity (Gates & Saunders,

2016). Bostock v. Clayton County marks a landmark case for LGBTQ+ rights so it serves as a logical cut-off point for a project of this nature.

During my research, I was faced with the question of what types of individuals and experiences I wanted to include in my data analysis as well as what information about each individual was relevant to my project. For the purpose of this project, I decided to narrow my focus specifically on direct quotes from members of the LGBTQ+ community detailing their experiences with being open and out about their LGBTQ+ status in their workplace and in turn how this led to employment discrimination related to their sexual orientation or gender identity. I sought out stories from 20 to

25 LGBTQ+ individuals from Texas and 20 to 25 from Oregon which totals between 40 and 50 individuals from both states. I used different variations of search terms and phrases that include but are not limited to LGBT workplace discrimination, being out in the workplace, LGBT employment discrimination, LGBT discrimination testimonials, LGBT discrimination stories, as well as adding 21

“Texas” or “Oregon” at the end of those phrases to narrow the focus of my results. Additionally, I added time restrictions between the years 1995 and 2020 which is the period of focus for this portion of the project. In order to fit the criteria that I was looking for, the source had to have firsthand direct quotes from LGBTQ+ individuals detailing their experiences with employment discrimination related to their sexual orientation or gender identity. The individuals also had to have had the discriminatory experience take place within Oregon or Texas and between the years of 1995 and 2020. To make the results easier to sift through, I conducted my searches in 5-year increments

(1995-2000, 2001-2005 ,…2015-2020).

Using these search parameters, I was able to compile a sample of experiences and quotes from

41 LGBTQ+ individuals in Oregon and Texas. The sources that I found and used for this project included 2 court testimonials, 39 news articles, 6 blog posts, 2 YouTube videos, and 1 magazine article. Of the individuals that I selected, 10 of them identified as a lesbian with 9 being from Texas and 1 from Oregon, 6 identified as gay with 3 from Texas and 3 from Oregon, and finally, 25 who identified as transgender or Transsexual with 13 being from Texas and 12 being from Oregon. For each person, I aimed to find their name or pseudonym, their age, occupational title, when the discrimination took place, when the story was published, which state they were from, and finally their direct quotes. I was not able to gather all of this information for every individual, but I did use multiple sources for some individuals in order to get a more complete picture of their stories. With the data I gathered from these different sources, I identified various themes and key terms that were common throughout the data to create a context for understanding the types of discrimination experienced by LGBTQ+ individuals in the workplace. These different themes are outlined and discussed in detail in the analysis section.

This study is limited for a number of different reasons. First, because it is possible that the quotations and stories used in this project may express feelings or experiences of the LGBTQ+ 22 community that could reflect misinformation. The sample size is small meaning that the data may be biased towards more egregious circumstances and possibly miss the voices of people who experience more micro forms of discrimination. The sample is not representative of the entire

LGBTQ+ community and only represents the select group of people who chose to speak up about their experiences online. This study is also limited by the fact that not all of the quotes used in this analysis detailed negative experiences, and not all LGBTQ+ individuals have been subject to employment discrimination. It is potentially more likely that LGBTQ+ individuals are going to speak out about their negative experiences. The nature of these sources also presents the opportunity for bias as I am only detailing the experiences of discrimination from the perspective of the LGBTQ+ employee while not explicitly providing perspective from the place of employment or others who may have witnessed the events. It is worth noting that the date an incident of discrimination is reported vs. the date that the discrimination occurred could differ by weeks, months, or even years. For this project, the data is organized by when the quotes were published unless a specific date of discrimination was mentioned by the individual in their story. Additionally, the data gathered for this project was strictly online meaning that there may also be limitations in the data available at the earlier end of the time frame being that blogging and posting online were not prevalent in 1995 that they are as you move down the timeline.

5. Analysis

By the end of the data collection portion of this project, 25 stories of LGBTQ+ workplace discrimination from Texas and 16 stories of LGBTQ+ workplace discrimination from Oregon were used. While this technically did not satisfy my original goal for each state, the overall number of individuals still totals 41 which is within the original goal range between both states. After continuously searching for more cases from Oregonians, I ultimately decided that 16 was enough for that state due to the drastic difference in overall population compared to Texas. In 2019, Texas had a population of approximately 29 million people making it the 2nd largest state population in the United States with

8.74% of its total national population while Oregon was only at 4.2 million people placing it at number

27 in state population or 1.2% of the total U.S. population (The United States Census Bureau, 2021).

The smaller sample size is adequate to represent Oregon in comparison with Texas. The increased difficulty in finding reported cases of sexual orientation and gender identity discrimination in Oregon also reflects on the fact that there have likely been fewer instances of this sort of discrimination in

Oregon compared to Texas because of the political and social climates in each place (Byrnes et al.,

2020). The themes presented in this analysis examine the way that the experiences of the LGBTQ+ individuals of this sample differ and relate to one another based on their LGBTQ+ status, the state they live in, the type of discrimination that they faced, and how their experiences relate back to the theoretical framework of this project.

Operationalizing Discrimination

In congruence with other studies that used similar structures or samples (Besl et al., 2020;

Cleghorn et al., 2018), this project analyzed each LGBTQ+ individual’s experience using three categories: failure to hire, wrongful termination, and intentional infliction of emotional distress. First was whether the discrimination occurred as a failure to hire an LGBTQ+ employee in the first place.

This sort of discrimination would force the employer to state a legitimate, nondiscriminatory reason 24 for not hiring an individual (Besl et al., 2020; Cleghorn et al., 2018). Failure to hire requires an

LGBTQ+ plaintiff in a Title VII suit to do more than refute or question the employer’s nondiscriminatory reason for the action (Besl et al., 2020; Cleghorn et al., 2018). For the purposes of this project, I also included failure to promote or passing up an LGBTQ+ person for a promotion because of their sexual orientation or gender identity under the failure to hire category. The next category was wrongful termination. A case of wrongful termination is easier to establish and allows for the use of circumstantial evidence to claim constructive termination based on a hostile work environment (Besl et al., 2020; Cleghorn et al., 2018). The third category considered was the intentional infliction of emotional distress. This would include when an employer purposely causes severe emotional distress through extreme and outrageous conduct (Besl et al., 2020; Cleghorn et al.,

2018). A common struggle faced with a claim of this nature is how to evaluate intentional vs. negligent infliction of emotional distress as well as how to decide at what point the behavior becomes extreme and outrageous (Besl et al., 2020; Cleghorn et al., 2018). Based on the information gathered from my sample of LGBTQ+ discrimination cases, there is often a definite awareness of when co-workers, managers, other staff members are intentionally creating hostile environments.

The intentionality was apparent in the way that the LGBTQ+ individual described their experience.

For example, Carter Brown, a transgender mortgage, and real estate employee from Texas, described the way that their “coworkers excluded [them] from work lunches and avoided [them] in the halls”

(HRC Media, 2015). For Brown, they found themself “suddenly isolated in a field where communication and teamwork were essential to doing [their] job.” (HRC Media, 2015). This type of behavior was not common before Brown’s transgender status was discovered in their workplace.

Based on these categories, I was able to evaluate trends that occurred throughout all of the

LGBTQ+ individuals in this study as well as how these trends differed between Texas and Oregon.

As a whole, the individuals included in this project faced intentional infliction of emotional distress 25 more often than the other categories. Between Texas and Oregon, 27 total LGBTQ+ employees experienced this emotional distress with 18 being from Texas and the other 9 being from Oregon.

Outside of that category, LGBTQ+ employees experienced wrongful termination and failure to hire, in that order respectively. Sixteen individuals were wrongfully terminated for their sexual orientation or gender identity, 8 from Texas and 8 from Oregon. From this sample, employers failed to hire 4 individuals due to their LGBTQ+ status with 3 being from Texas and 1 from Oregon.

During the course of my research, it became evident that there were certain similarities between the LGBTQ+ individuals who faced discrimination, or feared facing it, while being a member of the United States military. For this reason, there is also a section addressing the significance of this pattern. A separate category for the 8 positive workplace experiences of LGBTQ+ individuals from this sample was also included in order to highlight the fact that some employers do create a safe space for LGBTQ+ individuals in their companies.

Failure to Hire

Failure to hire an LGBTQ+ employee forces an employer to state a legitimate, nondiscriminatory reason for not hiring an individual (Besl et al., 2020; Cleghorn et al., 2018). A failure to hire case requires an LGBTQ+ plaintiff in a Title VII suit to do more than refute or question the employer’s nondiscriminatory reason for the action (Besl et al., 2020; Cleghorn et al., 2018). Failure to promote or passing up an LGBTQ+ person for a promotion because of their sexual orientation or gender identity falls under the failure to hire category.

The aforementioned idea that being LGBTQ+ could possibly be contagious is very prevalent in the gay and lesbian sample. Eleven of the 16 gay and lesbian individuals in this sample worked in careers that placed them in front of children and young adults in some way. Nine worked for school districts as teachers, student teachers, principals, or district employees. Upon their outing as

LGBTQ+, whether by their own doing or someone else’s, these individuals were faced with numerous 26 parental complaints, hateful reviews and comments, departmental transfers, and for some, termination from their jobs altogether. One individual worked in welfare services where they frequently interacted with children and the other worked as a photographer who often performed services like graduation pictures and family photos that required them to work with youth. That photographer, Alicia Verdier, is a lesbian from Texas. They are relatively open about their LGBTQ+ status stating that “it was no secret - the rainbow filter on my profile picture sends a pretty clear message” (Verdier, 2018). Verdier

(2018) was told by a potential client that “there was no way she would hire me” and that they “had no business working with babies and children” because of the potential that Alicia’s lifestyle could “rub off” on them. Sheila Dunlap, a lesbian teacher’s aide and bus driver from Texas, described when their office was “moved into a broom closet” after their sexual orientation was made known (Colloff, 2005).

They stated that “it had no heat or air and no room for a desk. The rain came in through the ceiling”

(Colloff, 2005). Dunlap was eventually fired from the job as a teacher’s aide and school bus driver.

Stacy Bailey, a lesbian art teacher from Texas explained that the school district they formerly worked for only transferred them from the elementary level to the high school level because of their LGBTQ+ status stating that it felt as though “gay teachers were not allowed at the elementary level” (Levenson,

2020). These individuals were either passed up on, transferred to a new department, or not even considered for a job solely because of their LGBTQ+ status.

Between the two states, there were not drastic differences in the nature of discrimination experienced by LGBTQ+ individuals who were passed up on due to their LGBTQ+ status. There were, however, more individuals from Texas who suffered from this sort of discrimination. In this sample, employers failed to hire 4 individuals due to their LGBTQ+ status. Of those 4, only 1 was from Oregon and the other 3 were from Texas.

Wrongful Termination 27

The negative experiences of LGBTQ+ individuals with wrongful termination in the workplace do not differ drastically between the two states. Much of the discrimination experienced by these

LGBTQ+ individuals in both Oregon and Texas were related to failure to conform to traditional gender roles, lack of understanding of the LGBTQ+ community, and absence of respect or recognition of personhood for the LGBTQ+ person by their employers and co-workers. Danielle

Pellett, a transgender chemist from Texas, discussed their experience with job loss as a result of their transgender status. They said “I have lost a job or two because of Texas’ right to work laws. I’ve faced employment discrimination simply for being transgender (Pellett, 2018).

A number of the employment discrimination cases from this sample occurred amongst teachers who were reported by their students’ parents for “promoting the homosexual agenda” by simply acknowledging the fact that they were gay when asked by students or willingly showing them a picture of their same-sex partner or educating students on an artist who just so happened to be

LGBTQ+. Stacy Bailey, a lesbian teacher from Texas, is a prime example of this when they talk about how they were “put on administrative leave at the start of this school year following complaints from a parent that [they] were ‘promoting the homosexual agenda’ (Verdier, 2018). Casey Stegall, a gay welfare services worker from Texas described being “fired just for me being who I am” after being terminated from their job for introducing their same-sex fiancé to the kids that they worked with

(Poole, 2014). The gay and lesbian community accounts for 16 of the 41 individuals included in this sample. A major theme that was presented by this sample was the idea that one’s status as either gay or lesbian has some sort of correlation to one’s ability to perform one’s job to the same capabilities as a heterosexual individual. For example, in the case of several teachers from this sample, their

LGBTQ+ status was seen as a distraction and corruptive to those they were teaching. Seth Stambaugh, a gay student teacher from Oregon, explains his experience with being honest about his sexuality to 28 his students when he “was dismissed after answering a fourth grader’s question about his marital status saying it would be illegal to marry a man” (KGW Staff, 2010).

Brooke Waits, a lesbian Inventory Control Manager at Cellular Sales in Texas, provides another example in her 2007 testimony at the House of Representatives Committee on Education and

Labor Subcommittee on Health, Employment, Labor, and Pensions hearing on the Employment

Non-Discrimination Act (House Committee on Education and Labor, 2007). She discussed her experience with having to actively hide her sexual orientation and relationship status in an effort to avoid conflict in her workplace because she “did not want to create any problems in this new job”

(House Committee on Education and Labor, 2007). She described speaking “very generally, never using [her] girlfriend’s name” because she was terrified of someone finding out about her LGBTQ+ status and firing her for it (House Committee on Education and Labor, 2007).

As a whole, the 25 transgender individuals in this sample were fighting every day to be treated with the same kindness and respect that heterosexual cisgender Americans are treated in the workplace but also just in everyday life. One individual was fired for “failure to meet requirements of employee handbook” despite no employee handbook being presented to them for reference or further explanation of the violation given. That individual was Aydian Dowling, a transgender baker, activist, speaker, and YouTube vlogger from Oregon. They explain their confusion and pain regarding their negative treatment due to their transgender status when they state that they “saw that [they weren’t] being accepted by these people” that they worked with and it just made them “remember that some people just don’t like who [they] are” (Freedom for All Americans Education Fund, 2016).

A theme that was prevalent throughout the entire sample, but especially among the gay and lesbian group, was the idea that their discovery as LGBTQ+ caused a metaphorical switch to flip in the eyes of those around them. One day they were seen and treated equally as humans and the next they were viewed as outcasts who were no longer welcome in their workplace. In her testimony at the 29

2007 House of Representatives Committee on Education and Labor Subcommittee on Health,

Employment, Labor, and Pensions hearing on the Employment Non-Discrimination Act, Brooke

Waits talked more on her experience being out in her workplace when she described how, “in a single afternoon, I went from being a highly praised employee to being out of a job. The experience has been very difficult for me because it has altered not only how I feel about the world, but how I feel in the world” (House Committee on Education and Labor, 2007).

A later section of this analysis will address the positive workplace experiences that are included in this sample, but it is important to note that even these positive experiences began with a sense of fear, shock, bravery, and loss. This fear was rooted in the fact that it was almost unheard of to openly transition in one’s workplace, or even just everyday life, without backlash and opposition. Donna

Rose, a transgender Dell employee from Texas explained how they were worried about the way coming out at work would impact their job security. At the time Dell “needed a Senior IT resource with a specific skill set, and [they] had the background and the skills they were looking for. In a perfect world, that should be enough and [their] greatest fear at the time was that somehow- in [their] new world- it wasn't” enough to prevent gender identity related discrimination (Rose, 2005). Donna’s experience was “so positive, in fact, that [they] eventually came out to a few other selected friends, and to [their] manager”. Despite the positive result, the initial fear and worry about employment security is very common among transgender individuals and the entire LGBTQ+ community.

Intentional Infliction of Emotional Distress

Among the LGBTQ+ people in this sample, words like “fear,” “hatred,” “hostile,” and

“inappropriate” were frequently used to describe their feelings about living and working as LGBTQ+ individuals without consistent protections from workplace discrimination in regard to their gender identity or sexual orientation. Out of the 25 stories from Texas that were used for this project, 9 directly reported living in a state of constant fear at their places of employment due to their LGBTQ+ 30 status and the chance that they could lose their jobs because of it. A foodservice worker, who chose to go by the pseudonym Lily, talked about their experience with fear and hostility in their work related to their gender identity as they stated that “the main shift lead repeatedly asked me what my ‘real name’ was after introducing myself with my chosen name and made it a point to use incorrect pronouns as often as they could” (Moreau, 2019). Many LGBTQ+ individuals choose to live and work in “stealth” which means that they hide their LGBTQ+ status (Talusan et al., 2020). While this can be an effective means of avoiding sexual orientation or gender identity discrimination, it is not sustainable nor healthy for LGBTQ+ people to consistently have to hide something a central to the core of their existence

(Talusan et al., 2020).

Additionally, 15 people discussed experiences of harassment, hostile environments, and inappropriate treatment following their coming out or being discovered and outed at work. Among the 13 transgender Texans in this sample, 5 reported consistent deadnaming, or someone refusing to acknowledge their gender identity as it was instead of what sex they were assigned at birth.

Deadnaming is harmful because it can feel invalidating to someone who is transitioning (Clements,

2018). Deadnaming can also accidentally out a transgender person who may not want other people to know about their transgender status (Clements, 2018). Among the transgender community that was included in this project, there were a number of similarities in their experiences with discrimination, especially related to deadnaming. Of the 25 transgender people in this sample, 17 reported negative workplace discrimination experiences. Experiences with deadnaming led these individuals to feel invalidated and unwelcome in their workplaces because they were not being treated as the humans that they are but instead as objects of their sexual orientation or gender identity status. Quoted earlier in this project, transgender food service worker Lily has firsthand experience with deadnaming in the workplace when she described how “Every day I went into work, I was incredibly anxious that I would 31 be working with the manager who had been deadnaming me. I called out sick several times because of that” (Moreau, 2019).

A few individuals in this sample discussed the way that psychiatric evaluation was sometimes used as a way to skirt around anti-discrimination laws that did exist. It wasn’t until May of 2013 that the Diagnostic and Statistical Manual of Mental Disorders (DSM) changed gender identity disorder to its current “gender dysphoria” (Bailey, 2014). Gender dysphoria is defined as clinically significant distress or impairment related to a strong desire to be of another gender, which may include desire to change primary and/or secondary sex characteristics (Turban, 2020). That means until 2013, being transgender was considered something of a disease or mental disorder that could be either cured or dulled through medical treatment (Bailey, 2014). Just as adding anti-discrimination legislation does not solve all problems of discrimination, changing the status of what it means to be transgender in the

DSM does not rid the United States of all stigmas and assumptions about transgender individuals. The fact that employers feel resorting to psychiatric treatment is a valid method of handling their transgender employees continues to highlight the lack of humanity and personhood with which this community if viewed. Of the transgender individuals in this sample, 2 reported being forced to undergo a psychiatric evaluation in order to assess their fitness for duty in their respective jobs. These evaluations were done by doctors who had been specifically selected by the employers and, in both cases, these individuals were deemed unfit to perform their jobs as a result of their open transgender status. Laura Calvo, a transgender former member of law enforcement, was forced to endure an evaluation of this nature due to the discovery of their transgender status in their workplace. They were

“told by [their] supervisor that the Sheriff felt that [they] would no longer be able to perform their duties because of the fact that [they] had been discovered to dress as a woman” (Hampton, 2012).

From there, Calvo was “ordered to travel to Portland for a psychiatric determination for fitness of duty” (Hampton, 2012). They “went before a panel of doctors, selected by the Sheriff's Office, who 32 determined [they were] not fit to return to work.” (Hampton, 2012). This means that not only did

Calvo lose their job but they were also forced to face the embarrassment of getting interrogated by a panel of doctors who were chosen by their discriminatory employer (Hampton, 2012)

The most common treatments of the LGBTQ+ individuals in this sample who faced discrimination were either consistent harassment with derogatory and inappropriate comments from their co-workers or outright ignorance and exclusion. Neither option was healthy or sustainable for these individuals. After Derek Boyd, an openly gay corrections officer in Texas, expressed his concern to one of his co-workers about offensive slurs, one of them began to harass him, which he said,

“created a hostile and unsafe environment in the presence of potentially violent or sexually aggressive inmates.” (Wright, 2019).

The Special Case of Military Service

Another factor that was unique to the transgender sample in this study was interactions with the military. The last 5 years have seen a back and forth in policy detailing whether or not transgender individuals can openly serve in the military. Former President Barack Obama granted transgender individuals the right to openly and proudly serve in the United States military in 2016 (Jackson &

Kube, 2019). Not even three years later, former President Donald Trump completely reversed this policy and, once again, prohibited transgender individuals from serving openly in the military as well as prohibiting them from receiving any medical benefits related to their transgender status (Jackson &

Kube, 2019). Within his first few months of being in office, President Joe Biden has worked to restore former president Obama’s inclusive military policy. His policy currently states that all Americans who are qualified to serve in the Armed Forces of the United States should be able to serve (Jackson &

Kube, 2019). This implies that something like gender identity should not be considered as a factor that could stop someone from serving. This policy went into effect on April 21st of 2020 (Bennett &

Edelman, 2021). Of the 17 total negative experiences that were reported by transgender people in this 33 sample, 5 of them occurred within some branch of the military. These 5 individuals described feeling trapped, scared, misunderstood, and unwelcome in their respective branches of the military due to their hidden transgender status. Isabel Jimenez, a transgender retail associate and former member of the military, talked about their time in the service and how they felt trapped by the lack of acceptance in the military. They “knew the military at the time would never approve of this kind of change or provide the proper support” (Jimenez, 2018). Only 1 of these individuals came out while serving and was promptly given a dishonorable discharge shortly after coming out. Shannon Scott, a transgender former member of the Air Force, was not even given the chance to explain or defend themselves once being outed before they were dishonorably discharged from their position. When Scott came into work, the Monday after disclosing their transgender status, there was shift in the way they could interact with their peers (Jimenez, 2019). Jamie Shupe, a transgender former member of the U.S. Army did not decide to transition until they had already retired from the military. This still resulted in the threat of losing all of the military benefits and distinguished military accolades that they, and their spouse, had rightfully earned through service.

None of the cases of discrimination listed in this sample occurred at a time when transgender individuals were afforded the same rights and protections as other members of the military. This makes it difficult to say whether or not the new inclusive policy will truly allow for a completely safe environment for transgender individuals to serve their country. These new policies will, however, make it illegal for discrimination to occur within the military due to a person’s transgender status moving forward.

Positive Workplace Experiences

In this sample of LGBTQ+ individuals, 8 reported positive experiences with either coming out or transitioning in their workplace. In all cases of positive outcomes, the individuals’ places of employment had already been explicitly committed to diversity and inclusion and had anti- 34 discrimination protections for LGBTQ+ individuals in place. Cass Averill, a transgender computer security specialist from Oregon, explained how they “sat down in [their] manager’s office and told him of [their] transgender status. His response blew [their] mind. Though he didn’t know what to do with the information, he made it clear that he was an ally and would do whatever he could to make the process as smooth as possible” (Averill, 2018). This gets at a much more hopeful theme that presented itself throughout the entire sample but was especially noticeable among the transgender community in this project, the feeling of relief and freedom experienced after coming out despite whatever discrimination they faced as a result. These individuals were resilient and refused to trade job security over the pain it caused them to hide who they really are. Twelve of the 25 individuals reported not regretting their decision to transition in their work even though 7 of those 12 were fired for their transgender status. To all of these people, the weight that was lifted off of their shoulders as a result of their openness was worth more than any job or friendship could have been. Karen Payne, a transgender software developer from Texas expressed her feelings of relief after transitioning fully at work. She stated that “throughout the process [she] had complete support in the workplace, the majority of friends and family supported [her] and still do.” (Payne, 2018).

These positive experiences, while encouraging, only made up a small portion of this sample and are not the norm when it comes to being openly LGBTQ+ in the workplace. Karen Payne explained that “statistically speaking the majority of transgender people have a very hard time transitioning” (Payne, 2018). Payne, and the others with positive experiences in this sample, were aware of the anomaly that was their smooth transition or coming out in their workplaces. The overall findings of this study show that many LGBTQ+ individuals still experience workplace discrimination despite the various forms of legal protections that are in place and should prevent this from happening.

6. Discussion

Unfortunately, no matter how many legal protections are afforded to any one minority group, there is still the possibility that it will not be enough to provide them safety and comfort in their place of employment. That is not to say that the legislation is not necessary, because it is, but this highlights the need for societal stereotypes, judgements, and stigmas to be corrected at a deeper level than just policy. Texas is one of 6 states with laws that restrict the inclusion of LGBTQ+ topics in schools

(Human Right Campaign, 2020a). This lack of access to education on the lives of LGBTQ+ people and their struggles makes it difficult to change the general perception of this community. Texas is also one of 25 states to be placed in the lowest-rated category when it comes to affording basic equality to

LGBTQ+ people by the Human Rights Campaign’s 2020 State Equality Index (Human Right

Campaign, 2020a). This index reviews all state legislation that affects the LGBTQ+ community and categorizes each state based on the level of priority that needs to be placed on achieving equality in each state. Again, Texas ranks in the lowest category necessitating high priority just to achieve basic levels of equality for the LGBTQ+ community in Texas (Human Right Campaign, 2020a). Outside of employment discrimination, Texas still has laws that permit LGBTQ+ discrimination in adoption and foster placement. Restrictions are also in place in regard to surrogacy access. HIV/AIDS criminalization and sodomy laws are technically still on the books (Gannett Satellite Information

Network, 2014). The state places restrictions on municipal protections and still provides the option for religious exemptions to what little state non-discrimination laws do exist (Gannett Satellite

Information Network, 2014). Of course, it is important to note once again that Texas is only one of

25 states in the United States to have these sorts of laws and restrictions. This further necessitates the need for sweeping legislation at the federal level prohibiting all types of LGBTQ+ discrimination if these states are ever going to completely rid their governments of these discriminatory practices and laws. 36

As mentioned earlier, Brower (2009) talks about the fact that many hold the perceptions that there is a link between homosexuality and the predatory recruitment of non-gay persons into the “gay lifestyle”. Moving past and correcting this idea that being LGBTQ+ is contagious or has the ability to corrupt youth is a key factor to achieving complete LGBTQ+ equality in states like Texas where conversion therapy is a legitimate option and being gay or transgender or lesbian is seen by many as a choice that is made as a result of some sort of trauma or lack of religious commitment (Menchaca,

2021). Bostock (2020) was a major victory for the LGBTQ+ community in states that do not grant protections of their own, but it does not solve the fundamental switch in societal perceptions of this marginalized community that must be flipped for this ruling to hold any true weight.

These occurrences of workplace discrimination are important to call attention to because they provide further evidence of the existence of loopholes around LGBTQ+ non-discrimination policy.

Oregon is one of 24 states to expressly prohibit employment discrimination based on both sexual orientation and gender identity (Human Right Campaign, 2020a). It is also one of 42 states that has anti-bullying laws which provide specific protections based on sexual orientation and gender identity within schools (Human Right Campaign, 2020a). Among a number of other protections that are afforded to LGBTQ+ individuals in Oregon, the state also allows for second-parent adoptions for same-sex couples, it places bans on insurance exclusions for transgender healthcare, and expressly facilitates gender marker updates on driver’s licenses and birth certificates (Human Right Campaign,

2020a). This is drastically different from the state level policy that exists in Texas. Even so, Oregon’s highly praised LGBTQ+ friendliness and existence of state policy is still not enough. The discrimination still occurs, and employers still get away with it.

The idea of immutable traits gets in the way that some traits, whether visible or not, are impossible to cover up or are too damaging to one’s identity to suppress (Connell, 2010). Again, of the individuals in this sample who came out or were outed at work, none of them reported feeling 37 regretful of their decision or that it happened regardless of all the negative consequences that may have come from the situation. This is because in all cases, they found that the feeling of existing openly was more rewarding than trying to hide who they were in order to fit in at a workplace that did not completely accept every part of them.

When looking at transgender individuals specifically, they have to go through the process of having to undo or redo their gender in not just their workplace, but in every aspect of their day-today lives (Human Right Campaign, 2020). If an individual grows up as a woman and has been socialized to present feminine qualities but then they begin their transition into a man, there are going to be a number of socially feminine qualities that they will carry with them forever and are still part of who they are (Connell, 2010). This does not make them any less of a man or any more of a woman, but it can cause friction in a workplace setting where most people are used to gender being very black and white, either completely male or completely female. One of the major barriers faced by the transgender people in the sample occurred when they were either just beginning or in the middle of their transition and not quite definitively presenting as either male or female. In this stage, it was more likely that these individuals would face criticism or opposition to things like how they dressed, which restrooms they used, the types of mannerisms they exhibited, what name they preferred to go by, and what pronouns they used. This is especially true in the case of individuals who choose to transition in an environment where they were known as one gender, by one name, and then began transitioning into someone different. Even so, individuals who enter a workplace already transitioned are still at risk of facing the same types of discrimination when their transgender status becomes known.

With the gay and lesbian sample, immutable traits can be presented similarly to that of transgender individuals, for example, if a lesbian woman may present as more masculine than what traditional gender roles say she should present as or if a gay man stylizes his wardrobe in a way that is perceived as more feminine. For gay and lesbian individuals, however, their immutable trait is more 38 related to who they love and take as their partners, as well as their unconventional family structure. It has never been an issue for heterosexual people to openly talk about their marital or relationship status in the workplace but, for gay and lesbian individuals, this can become a fire able offense. After receiving national recognition for her Teacher of the Year award in 2015, Shanna Peeples, a lesbian teacher from Texas, finally felt secure in her job after years of fearing that she would be fired due to her LGBTQ+ status. (Will, 2020) She highlights the issue above when she states that “You can legally be married to the person you love, but you can’t do the work that you love,” she said. “I think that’s really not only short-sighted but has long-term and lasting damage for the profession overall” (Will,

2020).

The Bostock ruling has created an opportunity for LGBTQ+ people to fight back against this sort of discrimination and forced closeting in the workplace but, once again, it is not enough to completely rid the workplace of fear on the part of LGBTQ+ individuals. Before the Bostock v.

Clayton County ruling, sex-stereotyping discrimination was the most common route taken by the

LGBTQ+ community when they faced workplace discrimination (Bostock, 2020). This was because actual sexual orientation or gender identity discrimination claims held no weight in court. As discussed above, both sexual orientation and gender identity are qualities of a person that are either impossible or too damaging to the individual’s identity to cover up (Connell, 2010). The existence of strict heteronormative gender roles and standards in the workplace, and in society as a whole, creates unnecessary pressure to conform to the rules of the gender that you most outwardly present as. These heteronormative standards are no longer realistically applicable in the openly diverse society that we live in. Those who cling to these standards are worried that a shift in their long-standing power dynamic will occur and they will be forced into an equal playing field that has never truly existed in

America (Sutter & Perrin, 2016). The individuals in this study’s sample are not asking anyone for special treatment because of their LGBTQ+ status. They are asking for their LGBTQ+ status to no 39 longer be a reason to be treated differently than everyone else. It is as simple as not needing to pay attention to gender to determine an individual’s ability to perform their job in the same that way race should not be considered as a factor of someone’s capabilities. Leyth Jamal, a transgender Sak & Co.

Employee from Texas, sheds light on their encounters with facing opposition to simply doing their job when they were “belittled by coworkers, forced to use the men’s room, and repeatedly referred to by male pronouns (he and him) before ultimately being fired” (Steinmetz, 2015). Jamal “just wanted to do [their] job but was met with resistance every step of the way” (Steinmetz, 2015).

Combatting these stereotypes requires the creation of a general professional standard of dress and behavior for all in order to implement the idea of a genderqueer workplace and create a safe space for all to be who they are without having to change one’s preferred identity to fit in.

Requiring all male presenting individuals to dress the same and hold them to specific standards of masculinity, as well as doing the same to female-presenting individuals with feminine qualities, is an outdated way to doing gender and operating a workplace (Weingarten, 2015). There is no overnight fix to this problem but more needs to be done to continue creating a space that is accepting and equal for all. This begins with protective legislation for the LGBTQ+ community.

Logical next steps for legislation would be the long-awaited passage of an all-inclusive

Employment Non-Discrimination Act as well as the passage of the Equality Act which is currently making its way through Congress. The Equality Act would serve as an amendment to Title VII and other employment laws explicitly adding discrimination on the basis of sexual orientation and gender identity as outlawed forms of discrimination (United States Congress, 2019). This act was introduced in 2015 and passed through the House of Representatives in 2019 but is awaiting a vote in the

Senate. The passage of this bill would be the most inclusive legislation of its kind.

7. Conclusion

The overall purpose of this study was to evaluate the relationship between the current status of Title VII of the Civil Rights Act of 1964 and the continued existence of workplace discrimination in the LGBTQ+ community. The beginning of this paper aimed to clarify the current status of protection covered by Title VII of the Civil Rights Act of 1964 and provide a historical perspective on the various legal protections for LGBTQ+ individuals in the United States. From a theoretical standpoint this paper explained various theories related to the ideas of heteronormative based vs. sexual orientation discrimination, immutable traits, legal vs. judicial remedies, and congressional intent vs. judicial interpretation in order to think about the topic of LGBTQ+ workplace discrimination from a broader perspective. The findings of this project illuminated the voices from the sample that was gathered of LGBTQ+ individuals living in Oregon and Texas who have faced employment discrimination because of their LGBTQ+ status. From there, the theoretical applications were evaluated as they applied to the results of this study and the need for sexual orientation and gender identity inclusive federal legislation. Despite all of the progress that has been made since Title VII’s 1964 origin, the United States has still failed to pass any form of lasting legislation that would permanently provide protections against discrimination based on sexual orientation and gender identity (Gates & Saunders, 2016).

The testimonies and experiences detailed in this project only scratch the surface of all those in the LGBTQ+ community who have faced harassment and discrimination in their workplaces because of their sexual orientation and gender identity. The individuals in this sample, along with thousands of other LGBTQ+ individuals in the United States, will continue to face discrimination in their daily lives and places of employment until a truly inclusive piece of legislation is passed and they gain the protections they deserve as human beings. Just in 2020, 1 in 3 LGBTQ people reported experiencing discrimination of some kind (Medina et al, 2021). The negative impact that 41 discrimination has on the physical, psychological and financial well-being of LGBTQ+ people can drastically alter their lives and limit the freedom with which they can live in this country (Medina et al., 2021). In order to truly level the playing field for all individuals, the federal government must pass legislation that universalizes basic human rights for all American citizens and residents, not just those who have been afforded these rights thus far.

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