Employment Law: Sexual Orientation Discrimination in the Workplace - Research Paper Example

?Employment Law- Sexual Orientation Discrimination in the Workplace Introduction One of the most fundamental factors that is not only inconsistent with but is also contrary to the modern standards of evaluation and assessment of an individual’s eligibility for a job is discrimination on the basis of sexual orientation or gender identity. Employment discrimination is the term used for discriminatory practices in employment that may include but are not limited to recruitment, promotion, termination, assignment of job, compensation, and different ways of harassment. Discrimination based on sexual orientation has been prevalent for many years in employment. Sexual orientation or sexual preference was a topic that many people avoided for fear of retaliation. Employers do not have the right to discriminate against an individual based on his sexual orientation or preference. Who a person is involved with should not have any bearing on qualifications or work ethics. Literature review According to irem.org (2007), as of July 2007, discrimination on the basis of sexual orientation was prohibited in the states of California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, and New York, and the states where discrimination on the basis of sexual orientation was not prohibited included Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, and Oklahoma. In Colorado, discrimination on the basis of sexual orientation was not prohibited until August, 2007. In the states of Alaska, Delaware, and Indiana, discrimination on the basis of sexual orientation was only prohibited in the state employment whereas in the states of Louisiana and Montana, protection was only offered to the public employees. Likewise, as of July 2007, discrimination on the basis of gender identity was prohibited in the states of California, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, and New Mexico whereas it was not prohibited in the states of Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Ohio, and Oklahoma. In Colorado, discrimination on the basis of gender identity was prohibited in August 2007 whereas in Indiana, protection was only offered to the state employees. This analysis suggests that in discrimination on the basis of sexual orientation or gender identity is not prohibited in the majority of states in the US. Twenty states in the US along with Washington, D.C. have enforced the anti-discrimination laws that prohibit any kinds of discriminatory practices on the basis of gender identity or sexual orientation. The first state in the US that enacted the anti-discrimination law was Wisconsin in the year 1982. Since 2002, seven states in the US have enforced similar laws. The Iowa Civil Rights Act was modified around the end of May, 2007, “when the Governor signed S.F. 427 into law making it illegal to discriminate in employment, public accommodation, credit, housing, and education based on a person's sexual orientation or gender identity” (irem.org, 2007, p. 2). Oregon’s governor made the legislation part of the law on 9 May 2007, according to which discrimination on the basis of sexual orientation as banned. According to Lambda Legal (2013), 49.97 per cent of the gay, lesbian, and bisexual adults in the US live in states with anti-discriminatory laws that prohibit discrimination on the basis of gender identity or sexual orientation in numerous sectors including housing, employment, and the public accommodations. This percentage excludes the population of gay, lesbian, and bisexual adults that are residents of the cities with ordinances that prohibit the discrimination on the basis of sexual orientation. According to Title VII of the 1964’s Civil Rights Act, employment discrimination is prohibited by the Equal Employment Opportunity Commission (EEOC). A range of other Acts also prohibits employment discrimination that include “the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, Sections 501 and 505 of the Rehabilitation Act of 1973, Titles I and V of the Americans with Disabilities Act of 1990 (ADA), Title II of the Genetic Information Non-discrimination Act (GINA), and the Civil Rights Act of 1991” (eeoc.gov, n.d.). Factors on the basis of discrimination is prohibited by these laws include but are not limited to color, religion, race, sex, age, genetic information, and national origin. The EEOC applies the interpretations of these statutes to its enforcement as well as adjudication in both the private and the federal sectors. In addition to that, the federal agencies have certain procedures in place to make the discriminatory complaints on the basis of any prohibitions imposed by the Executive Orders. For instance, certain gay, lesbian, and bisexual individuals have the right to file complaints under the 1614 process of sex discrimination as well as the Executive Order complaint process of the agency for discrimination on the basis of sexual orientation, since the two processes are separate. According to the Section 1 of the Executive Order 11478: It is the policy of the government of the United States to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation or status as a parent, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the federal government, to the extent permitted by law. (dol.gov, n.d.). Discussion In the case of Mia Macy v. Eric Holder, the complainant filed a complaint alleging employment discrimination. This complaint was based on gender identity. Mia Macy was a transgender police detective from Phoenix, Arizona. She decided to relocate to San Francisco, California due to family reasons. One reason for her decision to relocate to California from Arizona might be that discrimination on the basis of gender identity is prohibited in the former unlike the latter. At the time of transfer the complainant was still known as a male. The complainant applied for a position with the Alcohol, Tobacco, & Firearm at the Walnut Creek Crime Lab. Macy spoke with the director as a man and discussed her qualification. She followed up a month later to check the status of the position. She was reassured that the position was hers pending the outcome of a background investigation. Macy then informed the agency that she was in the process of gender reassignment. She was then told that the position was withdrawn due to budget cuts. After careful investigation the complainant learned that the position was not withdrawn but offered to another candidate. The reasoning was that the other candidate was farther along in the background investigation process. Macy said, “Within three days after my background [check] was completed and they alerted the lab that Mia would be coming to work, I was notified that the position was no longer available — even though I was certified and trained for the job” (Macy cited in Geidner, 2012). The complainant felt that she was discriminated against because of her gender reassignment status. She then contacted the Equal Employment Opportunity Commission to file a complaint. She was exercising her rights under Title VII of the Civil Rights Act of 1964. As a result of Macy’s complaint, the EEOC issued an opinion on 20 April 2012 that came in a decision to Macy’s lawyers on 23 April 2012. “It also comes on the heels of a growing number of federal appellate and trial courts deciding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection of the laws” (Geidner, 2012). Matt Wood, Macy’s TLC attorney said that the EO responded to Macy’s complaint in October 2011 by letting him know that the process of EEO was not available to Macy because there was subjectivity about the application of the Title VII to the transgender employees (Geidner, 2012). Issues underlying the complaint raised by Macy were disputed in a series of letters between Matt Wood and ATF and eventually, the EEOC was appealed to clarify the law in December 2011. The EEOC considers discrimination against an employee on the basis of the fact that he/she is a transgender is discrimination knowing which, Macy was exercising her rights under the Title VII of the Civil Rights Act of 1964. Various research studies to date have concluded that gay, lesbian, and bisexual individuals like to reside in the states or cities that have laws prohibiting discrimination on the basis of sexual orientation (irem.org, 2007, p. 2). The decision of EEOC was issued by a bipartisan commission of five members without objection applies to all EEOC activities of litigation and enforcement at the commission and is binding upon all federal departments and agencies. The ruling of EEOC that discrimination on the basis of gender identity under the Title VII is a big step forward that has created a sea change for the transgender Americans that find frequent opportunities of protection in employment. In addition to that, the EEOC has also noticed that the bisexual, gay, and lesbian individuals’ claims that allege sex-stereotyping represent a claim of discrimination on the basis of sex under the Title VII. In the US, there exists very little common law, statutory, or case law that declares discrimination on the basis of sexual orientation in employment as a legal wrong. However, certain alternative legal strategies and exceptions have been made available for the protection of the employees’ rights to a limited extent, e.g. protection of state employees against discrimination on the basis of gender identity in the state of Indiana. Various analysts and professionals have expressed contentment with EEOC’s decision; “Discrimination against transgender people in the workplace remains at unacceptably high levels, but we're hopeful that with a positive ruling from the EEOC, transgender people across the country will now know that they are in fact protected by federal law if they're denied a job or fired just because of who they are. And that's a really big deal” (Turner cited in Geidner, 2012). Conclusion Sexual orientation or gender identity must not be considered as included in the criteria of evaluation of an individual’s eligibility for any kind of employment whether in the public or the private sector. Macy’s was a very strong case as she had received egregious discrimination in the form of rejection after being clearly qualified for the job she was interested to have which is why the concerned authorities were compelled to do everything it took to right that wrong. Macy’s way led to a big change and establishment of the application of the Title VII to the transgender individuals in America which is undoubtedly a big step forward. Today, when an employee faces discrimination because of being transgender, the employer is considered to have engaged in the disparate treatment with respect to the employee’s gender. This decision holds irrespective of whether the employee has or has not expressed the gender in a non-stereotypical way and faces discrimination. Sexual orientation and gender identity are very private and personal matters that have no connection whatsoever with one’s ability to produce work. Discrimination on the basis of sexual orientation or gender identity is totally inconsistent with the drive toward equality that the modern age places emphasis on. Many firms have suffered because of such discriminatory practices as they were not able to hire competent workers, let alone the transgender or the women employees. Discrimination on the basis of sexual orientation or gender identity has both direct and indirect negative implications both on the employees and the society as a whole. While on one hand, the racial or discriminatory employees feel satiated because of the enforcement of the discriminatory laws in the workplace, on the other hand, the effects propagate to the society beyond the workplace also as these employees display the same discrimination elsewhere as they witness in their organizations. References: dol.gov. (n.d.). Executive Order 11478. United States Department of Labor. Retrieved from http://www.dol.gov/oasam/regs/statutes/EO11478.htm. Eeoc.gov. (n.d.). Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status. U.S. Equal Employment Opportunity Commission. Retrieved from http://www.eeoc.gov/federal/otherprotections.cfm. Geidner, C. (2012, April 23). Transgender Breakthrough. Metro Weekly. Retrieved from http://www.metroweekly.com/news/?ak=7288. Irem.org. (2007, July). Laws Prohibiting Discrimination Based On Sexual Orientation And Gender Identity. IREM Legislative Staff. Retrieved from http://www.irem.org/pdfs/publicpolicy/Anti-discrimination.pdf. Lambda Legal. (2013). Lambda Legal. Retrieved from http://www.lambdalegal.org/. Read More