Discrimination Based on Sex Gender - Essay Example

Overview At present, VII's clause against discrimination based on sex (gender) has not been translated to extend to discrimination of the basis of affinity orientation (1). Numerous cases have challenged the interpretation of this law, and almost all of them were interpreted to not include this area as part of Title VII's coverage (2). Under the federal law in general, bisexual, lesbian, or gay (3) employees who suffered discrimination in employment have little options against the employer. Under the federal law, bisexual, lesbian, and gay employees who suffer discrimination at work have almost no option against the employer. Though there is no definite law protecting bisexual, lesbian, and gay employees from discrimination at work, there are possible amendments to existing laws that could benefit bisexual, lesbian, and gay employees, dependent on the jurisdiction the employee is in and the type of employment the employee holds. Public Employees For employees employed by the federal or state government, in case of termination, there should be the option of suing the employer based on a violation of federal or state due process and equal protection of law. The procedural due process case should be able to assert that the termination of the bisexual, lesbian, or gay employee violated due process if the employee was not given an opportunity to be heard or a proper notice prior to the date of effectivity of the termination. A considerable due process case should address the equality of the law itself. The employee should be able to file a case against the employer in case the federal or state's termination of the employee for being bisexual, lesbian, or gay in unreasonable and would dispossess the employee of a property or personal right ensured by the constitution. An equal protection argument must be able to assert that the employer gave a different treatment to the bisexual, lesbian, or gay employee from other equally placed employees, for no grounds that are justifiable in law (4). Employers have no trouble dealing with the worry of proving that the reason for a government action is rational. Until now, alienage, nationality, and race are the only classifications that were directly given the mantle of suspect classification that has produced the instinctive utilization of the pressing state interest test (5). Also, quasi-suspect qualifications were recognized by the Court (6), and merely one court has spared putting lesbians, bisexuals, and gays in this classification (7). That middle ground between rational basis and suspect class require a showing that the government action can be "significantly associated to a valid interest of the state" (8). For employers, it is not hard to defend the disparity in treatment between non-gay and gay employees under the more relaxed rational basis test. Even though courts have largely backed off from allowing a disparity in management based mainly on the employee's identification or standing as lesbian or gay (9), it generally does not take much to prove that being lesbian or gay is, on way or another, linked to performance at work. For example, the possibility of security risks from discovery of lesbian or gay employees' affinity orientation was a frequently used justification in treating these employees differently (10). This happens even when the employee does not really conceal their orientation or affinity so that "discovery" is not really a concern (11). On the other hand, some local and state jurisdictions have in fact implemented laws particularly to protect lesbian and gay public employees from discrimination at work, therefore freeing them from this legal struggle over due process or equal protection classification (12). Private Employees The situation is not considerably different for private employees. There is almost no protection from suffering job discrimination merely by being bisexual, lesbian, or gay, or being perceived as such, unless the employee resides in one of the few states that have anti-discrimination laws (13). Under the existing employment-at-will policy, employers may terminate at-will employees for any grounds that are legal. Terminating an employee for being bisexual, lesbian, or gay unquestionably fits into the grounds that would be permitted under the employment-at-will policy because the employer does not actually need any basis whatsoever (14). On the other hand, not all states have similar situations. A few states have passed laws expressly prohibiting job discrimination against bisexuals, lesbians, and gays. Administrative arrangements may differ, but in these states that have such laws, bisexual, lesbian, and gay employees cannot be randomly terminated from employment for affinity orientation reasons. The sad part here is that only a few states up to now have passed such laws. Lesbian and gay employees who live in other jurisdictions that have no such laws still suffer employment discrimination. Changes should be done immediately to create a non-biased, performance-based work environment in the whole country (15). Conclusion Most people believe that any person qualified for a job should be able to work without the fear of being terminated due to reasons that are not related to business. Again and again, bisexual, lesbian, and gay employees have proved themselves qualified for their jobs. However, they almost have no power to keep their jobs notwithstanding how qualified they are. Federal assistance through legislation eliminating job discrimination against them should be done to protect the employees from this type of discrimination and to send an important message all across the country. The law should not provide any special rights for any group, but it should promote equality among all groups. It should provide similar rights for bisexual, lesbian, and gay employees that other employees customarily benefit from. It would not mean that the workplace should be filled with a specific number or quota of lesbian and gay employees, as employees would not be able to make out claims of job discrimination on disparate impact test grounds. Lesbians and gays should be able to secure their jobs so long as they performed up to the employer's standards. They should not be terminated simply because the employer does not want to keep lesbian or gay people in the workplace. If the conduct of the lesbian or gay employee is inappropriate for the business, then it should be dealt with accordingly and effectively --- but it would be based on conduct rather than affinity orientation. For example, dress codes, sexual harassment policies, workplace dating policies, and the likes should still be enforced. Activity or conduct, rather than affinity orientation, should be the focus of any disciplinary or dismissal actions. This is what is fair. The country has long prided itself on open opportunity and fairness. American businesses like to believe that they capitalize on the country's resources. Permitting random termination of bisexual, lesbian, and gay employees for no other grounds than the fact that they are lesbian or gay does not do this. It sends a powerful and prejudiced message about the worth of employees to employers, and it is an unprofessional and wasteful use of resources. The amendment should be done now, and if not now, then soon. The sooner the federal government starts protecting lesbian and gay employees from unsubstantiated, baseless, and random dismissals not linked in any way to their ability to perform, the sooner they will be able to send proper message to everyone that employees are valued for the qualifications they bring and the contribution they generate. They should not be judged based on non-work related and irrelevant factors, for to do so is definitely a course headed for the wrong direction in making valuable use of all the employer's resources. Notes [1] "Affinity orientation" will be the term used in this paper instead of "sexual orientation." By definition, the term "sexual orientation" is used to describe the sexual element of the lives of bisexuals, lesbians, gays, and trans-genders. This is unsuitable in the workplace perspective where the private sex lives of employees is completely unrelated to the issue of performance and qualifications. [2] Harvard Law Review. The Contitutional Status of Sexual Orientation: Homosexuality As a Suspect Classification, 6 (1985) 98 [3] The terms lesbians, gays, and bisexuals (those who have personal relationships with both genders) are used in the paper. The ability to name is a vital one. "Homosexuality" is a term specifically rejected by the author as it remains focused on the typically more titillating and prurient features of the sex lives of lesbians, gays, and bisexuals instead of on them as whole people whose sex lives embody an equal place in their lives as anyone else. [4] "The Contitutional Status", 98 [5] Michael K. Sullivan, Sexual Minorities: Discrimination, Challenges, and Development in America (New York: Haworth Social Work Practice Press, 2003) 29. [6] "The Contitutional Status", 98 [7] Ibid, 98 [8] Ibid., 98 [9] Sullivan, Sexual Minorities, 30 [10] Ibid., 31 [11] Ibid., 31-32 [12] Ibid., 34 [13] Tamara L. Roleff, Gay Rights. Current Controversies (San Diego, CA: Greenhaven Press, 1997) 17. [14] John Williams Malone, 21st Centruy Gay, (New York: M. Evans, 2000) 26. [15] M Badgett and Jeff Frank, "Sexual Orientation Discrimination: An International Perspective", Routledge IAFFE advances in feminist economics (London: Routledge, 2007) Sources Consulted 1985. "The Constitutional Status of Sexual Orientation: Homosexuality As a Suspect Classification". Harvard Law Review. 98, no. 6. Badgett, M. V. Lee, and Jeff Frank. Sexual Orientation Discrimination: An International Perspective. Routledge IAFFE advances in feminist economics, 4. London: Routledge, 2007. Malone, John Williams. 21st Century Gay. New York: M. Evans, 2000. Roleff, Tamara L. Gay Rights. Current controversies. San Diego, CA: Greenhaven Press, 1997. Sullivan, Michael K. Sexual Minorities: Discrimination, Challenges, and Development in America. New York: Haworth Social Work Practice Press, 2003. Read More