In 1970, Jack Baker and his life partner, James McConnell, applied to the state of Minnesota for a marriage license. It was the first time in U.S. history that two men had sought to marry. This was a revolutionary act which we can now see was the first step on the long path to marriage equality. Baker and McConnell knew they would lose, but they put the issue on the table.
Baker challenged the denial of their marriage license all the way to the U.S. Supreme Court, losing at each stop on the way. And though Baker went on to become student body president at the University of Minnesota, his intended, James McConnell, was denied employment as a librarian at the same university due to his public declaration of homosexuality. He challenged this refusal of employment.
In upholding the University’s denial of the librarian job to McConnell, the Eighth Circuit Court of Appeals held that McConnell was asking for “the right to pursue an activist role in implementing his unconventional ideas concerning the societal status to be accorded homosexuals and, thereby, to foist tacit approval of this socially repugnant concept upon his employer, who is, in this instance, an institution of higher learning.” McConnell v. Anderson, 451 F.2d 193, 196 (Eighth Cir. 1971).
Over forty years later in 2015, the United States Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Obergefell v. Hodges, 576 U.S. 644.
In 2020, the United States Supreme Court held that federal law prohibits discrimination in employment against LGBTQ people. Bostock v. Clayton County, Georgia, No. 17-168 (U.S. June 15, 2020). This decision ended the irrationally bigoted 5-year period when LGBTQ employees could be “married on Sunday and fired on Monday.”
We have come a long way!
This article describes the state of employment law concerning LGBTQ people at the federal level and in New York State. It also addresses practical issues in litigating LGBTQ discrimination cases.
I. Statutes Prohibiting Sexual Orientation And Gender Identity Discrimination
A. Landmark Supreme Court Decision Protects Sexual Orientation and Transgender Status under Federal Law
Title VII of the Civil Rights Act of 1964 protects individuals employed in workplaces with at least 15 employees from discrimination based on race, color, religion, sex, and national origin. While Title VII does not expressly prohibit sexual orientation or gender identity discrimination, the United States Supreme Court ruled on June 15, 2020 in the landmark case Bostock v. Clayton County, Georgia, No. 17-168 (U.S. June 15, 2020), that the statute’s prohibition of employment discrimination based on sex extends protection to individuals based on sexual orientation and transgender status. The decision was sweeping, unexpected and welcome!
The Court’s 6-3 majority opinion, penned by Justice Gorsuch, reasoned that such protection extends from a straightforward application of the plain and settled meaning of Title VII’s terms. Id. at 12. The Court first examined and defined the terms of the operative provision of Title VII, which makes it “unlawful… for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… because of such individual’s… sex.” 42 U.S.C. § 2000e–2(a)(1). The Court defined “sex” to mean the biological distinctions between males and females, and “because” to mean “by reason of” or “on account of,” incorporating the “but-for” causation standard so that a defendant cannot avoid liability by citing some other factor that contributed to its challenged employment action. Bostock, slip op. at 5. The Court then explained how the term “individual” prevents an employer from escaping liability by treating men and women equally: “an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.” Id. at 9.
Applying the terms of Title VII’s operative provision, then, the Court determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex… That has always been prohibited by Title VII’s plain terms—and that should be the end of the analysis.” Id. at 12 (internal quotation marks omitted). The Court provided an anecdote to illustrate this point: “[Consider] an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Id., at 9-10. Sexual orientation and transgender status are thus distinguishable from cases in which Title VII does not apply because the trait for which an employee was treated adversely, e.g. tardiness or incompetence, are not so “inextricably bound up with sex.” Id. at 10.
As additional rationale, the Court noted how the principles it applied in interpreting Title VII to prohibit discrimination based on sexual orientation and gender identity are derived from three of its prior decisions: Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Id. at 12. The Court also further rationalized its holding with the broad nature of Title VII’s provisions: “[W]hen Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. ‘Sexual harassment’ [for example] is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep… Same with ‘motherhood discrimination.’” Id. at 19 (internal citations omitted).
It is worth noting that Justice Gorsuch’s Bostock opinion briefly addressed concerns that compliance with the decision would require some employers to violate their religious beliefs. He described three mechanisms by which application of the statute accommodates religious liberties. First, Title VII expressly exempts religious entities. See 42 U.S.C. § 2000e-1(a). Second, “the First Amendment can bar the application of employment discrimination laws to claims concerning the employment relationship between a religious institution and its ministers.” Bostock, slip op. at 32 (internal quotation marks omitted). And third, Justice Gorsuch noted that the Religious Freedom Restoration Act of 1993 (RFRA) “might supersede Title VII’s commands in appropriate cases” because it “prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.” Id. (citing 42 U. S. C. §2000bb-1, 3). The Bostock Court concluded, however, that employers alleging that the Court’s interpretation of Title VII is in conflict with their religious liberties would need to claim as such in future cases.
B. New York State Human Rights Law Protects Sexual Orientation and Gender Identity
Over three decades after its initial proposal, the Sexual Orientation Non-Discrimination Act (S. 720/A. 1971) finally became law in New York State, effective January 16, 2003. The law, known as SONDA, did not create a new statute, but simply amended the New York State Human Rights Law (“NYSHRL”) to insert “sexual orientation” after “national origin” and before “sex” in every place where those terms appear. Therefore, beyond prohibiting sexual orientation discrimination in employment, SONDA amended the NYSHRL to prohibit sexual orientation discrimination in training programs, public accommodations, housing, credit and education. SONDA also amended the definitions section of the NYSHRL to define “sexual orientation” as “heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived.” N.Y. Exec. L. § 292.
Though many New York courts had begun to grant protections to individuals based on gender identity or expression under the NYSHRL, it was not until 2019 that the New York legislature expressly granted such protections. Effective January 25, 2019, New York enacted the Gender Expression Non-Discrimination Act (GENDA), which amended the NYSHRL to add gender identity or expression as a protected category in all areas covered by the law, including employment, housing, public accommodation, and education. GENDA further amended the NYSHRL to define “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” N.Y. Exec. L § 292(35).
Sexual orientation and gender identity or expression are now treated as any other protected category in discrimination litigation under state law. An employee alleging discrimination based on sexual orientation or gender identity or expression will bear the same burdens and have available the same remedies as an employee alleging discrimination based on any other protected category under the NYSHRL.
C. Many Municipal Human Rights Laws In New York State Protect Sexual Orientation and Gender Identity
Many municipal jurisdictions in New York have laws prohibiting sexual orientation discrimination in employment and other contexts. These municipalities include but are not limited to: Albany, Alfred, Binghamton, Brighton, Buffalo, East Hampton, Ithaca, New York City, Plattsburgh, Rochester, Southampton, Troy, and Watertown. The following counties have such laws: Albany, Nassau, Onondaga, Suffolk, Tompkins, and Westchester. Additionally, a number of cities and counties in New York have laws which protect individuals from discrimination based on gender identity or expression. These include the cities of Albany, Binghamton, Buffalo, Ithaca, New York City, and Rochester, as well as the counties of Suffolk, Tompkins, and Westchester.
The New York City Human Rights Law (“NYCHRL”) is codified within the New York City Administrative Code § 8-101 et. seq. The NYCHRL protects individuals from employment and other discrimination based on gender, marital or partnership status, and sexual orientation. N.Y.C. Admin. Code § 8-107. In the employment context, the NYCHRL also prohibits discrimination based on sexual and reproductive health decisions. Id. The NYCHRL defines “gender” to include “actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth.” Id. at § 8-102. The NYCHRL also further defines “sexual orientation” as “an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality and pansexuality.” Id.
These local statutes may be more favorable to employees than the New York State Human Rights Law (“NYSHRL”). The Local Civil Rights Restoration Act of 2005 amended the NYCHRL to require a liberal construction analysis that goes beyond state and federal employment discrimination statutes in order to fulfill the NYCHRL’s “uniquely broad and remedial” purpose. Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 66 (N.Y. App. Div. 2009). Analogous provisions of the NYSHRL and Title VII must therefore be viewed “as a floor below which the City’s Human Rights law cannot fall,” id., and the law must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Albunio v. City of N.Y., 947 N.E.2d 135, 137 (N.Y. 2011).
II. There Are Constitutional Bases From Which to Challenge Sexual Orientation Discrimination
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is increasingly being used with some success to attack discrimination by state actors against individuals on the basis of sexual orientation. While the Supreme Court has never explicitly acknowledged that laws discriminating on the basis of sexual orientation receive heightened scrutiny, its decisions suggest that such laws may be invalidated if they are based on an actual state purpose of animus against homosexual individuals. In Romer v. Evans, 517 U.S. 620 (1996), for example, the Supreme Court struck down a Colorado constitutional amendment because the Court discerned that the state’s actual purpose in enacting the amendment was animus towards the LGBTQ community. Prior to the Supreme Court’s Bostock opinion, federal courts in New York sometimes cited Romer to remedy sexual orientation discrimination in the workplace context where the employer was also a state actor. See, e.g. Quinn v. Nassau County Police Department, 53 F.Supp.2d 347 (E.D.N.Y. 1999) (citing Romer to uphold Equal Protection claim of a gay male police officer for workplace harassment on the basis of his sexual orientation); Lovell v. Comsewogue School District, 214 F.Supp.2d 319 (E.D.N.Y. 2002) (upholding Equal Protection claim of lesbian public school teacher who was harassed by her students based on her sexual orientation without effective remedial action by the school district).
This “rational actual purpose” (a/k/a “rational basis with teeth”) analysis applied by the Supreme Court to laws discriminating on the basis of sexual orientation constitutes a lower level of scrutiny under the Equal Protection Clause than the heightened scrutiny which has been applied to laws discriminating on the basis of sex. Such laws must serve an important and actual state interest through substantially related means in order to pass Constitutional muster.
In separate dissenting opinions to the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, No. 17-168 (U.S. June 15, 2020), Justices Kavanaugh and Alito addressed the issue of whether the Court’s holding may be extended from Title VII to the Constitutional context. In Justice Kavanaugh’s dissent, he hinted that the decision may have constitutional implications when he pointed to the history of Equal Protection Clause jurisprudence to argue that sexual orientation discrimination has always been considered a distinct form of discrimination from that based on sex. Bostock, slip op. at 20 (Kavanuagh, J., dissenting) (“[T]he Court never suggested that sexual orientation discrimination is just a form of sex discrimination…and therefore entitled to the same heightened scrutiny under the Equal Protection Clause.”). Justice Alito more directly addressed how the Bostock decision could spur a break with Constitutional precedent that applies differing levels of scrutiny to laws discriminating on the basis of sex versus sexual orientation. In his dissenting opinion, joined by Justice Thomas, Justice Alito noted that “despite the important differences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases… By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination” to the heightened scrutiny that sex-based discrimination receives under the Equal Protection Clause. Id. at 53 (Alito, J., dissenting). Justice Alito then cited a list of pending cases in lower courts in which transgender plaintiffs have challenged laws on Constitutional grounds. Id. at 53-54.
III. Practical Issues
A. Establishing Knowledge of an Employee’s Sexual Orientation
A suit alleging discrimination based on sexual orientation raises the central problem of proof that any discrimination case raises, namely, establishing at trial that the adverse action was motivated by discriminatory animus. Yet, there is sometimes another hurdle in an LGBTQ discrimination case. You must first establish that the employer decisionmakers (or those who influenced them) had knowledge of the plaintiff’s sexual orientation or gender identity. Ideally, the plaintiff has brought his or her spouse or life partner to the holiday party or has otherwise been open at work. But if not, you must consider whether there is a reasonable possibility of proving knowledge at trial. Discovery, properly conducted, may yield substantial admissible evidence. Has your client’s sexuality or gender identity been the subject of employee gossip which reached the ears of management? (The hearsay rule should not preclude admission of such evidence because it goes to state of mind, not truth.) Did your client solicit funds for the GMHC AIDS walk? Is your client’s spouse or life partner listed as the beneficiary of a life insurance policy? Did your client bristle and walk away when a gay joke was told? Is there a picture of your client’s spouse or life partner on their desk? All of these types of inquiries, or others which your client may be able to suggest, should be pursued.
B. Establishing Bias
While proving knowledge of your client’s sexual orientation is sometimes an extra burden, these types of cases will sometimes yield many comments evidencing bias than other discrimination cases. LGBTQ bias is still socially acceptable in some communities, and there may be a lack of awareness concerning the employment protections afforded to LGBTQ individuals. As such, some people do not shy away from using anti-gay or anti-trans epithets, or from telling insulting jokes the way they might with respect to race or age. During depositions, you must query every witness on what they have said or heard in this regard. By the time of trial, you may have developed quite an arsenal of comments that support your client’s claim of sexual orientation discrimination.
C. Selecting A Jury
Jury selection is another area where sexual orientation and gender identity cases must be very carefully handled. In any voir dire panel there are likely to be some people who are not positively inclined toward LGBTQ individuals, have religious qualms, or are just not comfortable with issues of homosexuality or gender identity. This may impede identification with the plaintiff which is key to winning cases. It is imperative to ensure questioning of potential jurors on their possible bias. A few sample questions are: Is there anything about the nature of the case, the parties, or the kinds of issues that may arise that raises a concern in your own mind about whether or not you could be a fair and impartial juror? Does the fact that plaintiff is gay cause you to lean towards the plaintiff, lean toward the defendant, or make no difference? If a good friend told you that he or she was transgender, do you think this would affect your friendship in any way? Of course, jurors who harbor a bias may be reluctant to give honest answers to these questions in open court. You might consider making a motion to question the panel by means of a questionnaire or, at least, to have these questions asked out of the presence of other jurors.