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social sciences

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Workplace Discrimination  
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Wisconsin, in 1982, was the first state to pass a statewide sexual orientation anti-discrimination law. As of 2003, the following 14 states and the District of Columbia had statutes protecting workers from sexual orientation discrimination in public and private employment: California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Wisconsin. Another 9 states protect public employees from discrimination through executive order: Alaska, Colorado, Delaware, Illinois, Indiana, Michigan, Montana, Pennsylvania, and Washington.

HRC takes a somewhat pessimistic view of this development, saying, "At this rate, it would take more than 60 years for all 50 states to enact such laws." Yet the rate of change seems to be accelerating, with 3 states (Nevada, New Mexico, and New York) passing their anti-discrimination statutes in the last two years.

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Other observers take a more optimistic view. Professor Arthur Leonard notes that, based on the 2000 census, "approximately 95 million people live in states that ban sexual orientation discrimination in employment . . . . This accounts for about one-third of the population. If one adds population for cities and counties that ban such discrimination in states that lack such laws, it is likely that a majority of the population is governed by sexual orientation non-discrimination principles."

Federal Law

Still, the biggest prize is yet to be won, and that is the passage of a federal anti-discrimination law. The Employment Non-Discrimination Act (ENDA), which would ban workplace discrimination based on sexual orientation across the country, has been introduced in Congress for over twenty years, but it has never passed.

Without ENDA, lesbian and gay litigants seeking federal relief have had to shoehorn their discrimination claims into Title VII of the Civil Rights Act of 1964. That landmark legislation, which was aimed primarily at eliminating racial discrimination, also prohibits employers from discriminating with respect to "compensation, terms, conditions, or privileges of employment, because of . . . sex" (42 U.S.C. § 2000e-2(a)(1)).

The Supreme Court has held that sex discrimination under Title VII includes the "hostile work environment" where the harassment is so severe and pervasive that it alters the terms and conditions of employment (Harris v. Forklift Systems, Inc. [1993]).

However, despite some horrendous factual patterns of lesbians and gay men being relentlessly abused and assaulted at their jobs, and work environments that are clearly hostile toward them, federal courts have consistently rejected the argument that Title VII covers sexual orientation discrimination. From the late 1970s until 2002, every federal appellate court to consider the question has held that Title VII does not apply to sexual orientation discrimination, based on the assumption that Congress did not have gay men and lesbians in mind when it banned sex discrimination.

Observers have held out hope that the result might be different after the Supreme Court's holding in Oncale v. Sundowner Offshore Services, Inc. (1998). That case involved same-sex harassment of a most brutal nature on an all-male (and, at least ostensibly, all-heterosexual) oil rig in the Gulf of Mexico. In an opinion authored by Justice Scalia, the Court held that Title VII applies even when the harasser and the victim are the same sex. Justice Scalia conceded that "male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII," but said, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils."

Nevertheless, after Oncale several federal courts have held that in a same-sex harassment situation, if the victim is being harassed because of his/her sexual orientation Title VII does not apply. This has led to the startling result that if the victim of workplace same-sex harassment is heterosexual (as is Joseph Oncale) Title VII applies, but if the victim is lesbian or gay it does not.

Some Promise of Relief

The uninterrupted string of negative precedents from the federal appellate courts was finally broken in 2002 with the Ninth Circuit's decision in Rene v. MGM Grand Hotel. The majority there held that a gay employee ridiculed and abused by other male employees at the MGM Grand in Las Vegas had a cause of action under Title VII. The court said that an employee's sexual orientation is "irrelevant for purposes of Title VII." Instead, it held the focus should be solely on whether "the harasser engaged in severe or pervasive unwelcome physical conduct of a sexual nature."

The MGM Grand asked the Supreme Court to review this ruling, but the Court declined, so Rene is now the law for the nine Western States in the Ninth Circuit. It is hoped that other circuits will follow the Ninth Circuit's lead and extend coverage of Title VII to include lesbian and gay employees.

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