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On LGBT Job Discrimination, The Courts Are Finally Correcting Congress

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Courts May Finally Prohibit Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity

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The difficulty in passing a national bill protecting LGBT workers from employment discrimination highlights the dysfunction of American government. Despite the fact that a large majority of Americans supports such legislation, Republicans have steadfastly blocked proposed nondiscrimination laws through a variety of tactical maneuvers or poison pill amendments. However, the courts may finally do what Congress has been unwilling to do.

Currently, LGBT people are partially protected from employment discrimination by a patchwork of state and local laws, executive orders, and court rulings.

Although there is no federal law explicitly addressing employment discrimination based on sexual orientation and gender identity, executive orders–the first of which was issued in 1995 by President Bill Clinton–prohibit discrimination on the basis of sexual orientation and gender identity in federal employment and–thanks to President Obama–by government contractors.

While most “blue states” have passed nondiscrimination laws that cover sexual orientation and gender identity, most “red states” provide no state-wide protection for LGBT employees, though cities in many of them provide limited protection.

Courts have generally ruled on equal protection grounds that public employees are protected from discrimination on the basis of sexual orientation and gender identity, but have been reluctant to extend such protection to employees in the private sector absent state statutes or municipal ordinances.

While most large businesses have voluntarily adopted nondiscrimination policies that cover sexual orientation and gender identity, most small businesses in red states have not.

However, recent interpretations of Title VII of the Civil Rights Act of 1964 by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal laws that make it illegal to discriminate against employees and job applicants, provide hope that LGBT individuals will soon enjoy protection against discrimination even in red states and even by private employers.

The EEOC has determined that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The determination is binding on all federal agencies and departments and governs EEOC enforcement and litigation activities throughout the country. Although courts are not bound by the EEOC’s interpretations, they often give deference to them.

The EEOC has recently announced that sexual orientation and gender identity is now a strategic enforcement priority for the agency. They are expected to mount an aggressive program of litigation on behalf of LGBT people who have experienced employment discrimination.

Gender Identity As a Protected Classification

Recent court rulings, at both the district and appellate levels, have affirmed that transgender people are protected from discrimination in employment.

For example, on December 6, 2011, the Eleventh Circuit Court of Appeals in Glenn v. Brumby upheld a lower court ruling that the Georgia General Assembly discriminated against Vandy Beth Glenn, a transgender woman who was fired from her job as Legislative Editor after she told her supervisor that she planned to transition from male to female.

In a forceful opinion authored by Judge Rosemary Barkett for a unanimous three-judge panel, which included one of the most conservative judges on the federal bench, Judge William Pryor, the Court declared, “An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. . . . A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

The decision stated unequivocally: “We conclude that a government agent violates the Equal Protection Clause’s prohibition on sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”

The victory was the first ruling on transgender rights from the Eleventh Circuit, considered one of the most conservative circuits. The ruling brought the Eleventh Circuit in line with other circuits in applying to transgender individuals the U.S. Supreme Court ruling in Price Waterhouse v. Hopkins (1989) that said that gender non-conformity is included in the Civil Rights Act’s prohibition of discrimination on the basis of sex.

The plaintiff in the case, Vandy Beth Glenn, worked for two years in the Georgia General Assembly’s Office of Legislative Counsel as an editor and proofreader. In 2007, Glenn informed her immediate supervisor, Beth Yinger, that she planned to transition from male to female, and showed Yinger photographs of herself in professional female attire. Yinger passed the information on to her boss, the General Assembly’s Legislative Counsel, Sewell Brumby, who promptly fired her.

A 2012 ruling by the EEOC itself also held that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The decision was issued in Macy v. Holder, a case in which Mia Macy, a transgender woman who was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after she revealed her intention to transition from male to female, claimed that she suffered discrimination because of her gender identity.

Issued without dissent by the five-member, bipartisan Commission, the decision states unambiguously “that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”

“When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

Masen Davis, then head of the Transgender Law Center (TLC), which brought the case on behalf of Mia Macy, described the decision as a “big leap forward,” because now “transgender people who feel they have faced employment discrimination can go into any of [the Commission’s] 53 offices and the EEOC will consider their claims. What’s more, the EEOC could take action itself to sue the employer for discrimination.”

He added, “Given that transgender people do not have employment protections in the vast majority of states, this creates a whole new fabric of legal support for our community.”

The TLC first pursued Macy’s complaint through the Office of Equal Opportunity of the ATF, which is responsible for considering complaints of discrimination by the agency. When the ATF’s equal opportunity officer denied that Title VII applied to transgender employees, the TLC filed suit, asking the EEOC to clarify the law.

https://www.youtube.com/watch?v=hMp0D4bAnokÂ

Sexual Orientation as a Protected Classification

Although it is now clear that Title VII’s prohibition of sex discrimination covers discrimination on the basis of gender stereotypes and gender identity, it is not yet firmly established that it also covers discrimination on the basis of sexual orientation.

At least two federal lawsuits are currently underway that may clarify the question.

One is Baldwin v. Foxx, a suit in which David Baldwin, a former Federal Aviation Administration employee, alleges that he was denied a promotion and suffered harassment based on his sexual orientation.  Baldwin first filed a complaint with the EEOC in 2012; finally, in July 2015, the EEOC ruled that sexual orientation is indeed covered by Title VII and permitted the lawsuit to go forward. It is currently pending in the U.S. District Court for the Southern District of Florida.

The uncertainty about whether sexual orientation is a protected classification was also recently confronted in an extraordinary ruling in the U.S. Court of Appeals for the Seventh Circuit issued on July 28, 2016 in a case known as Hively v. Ivy Tech. Judge Ilana Rovner, writing for a three-judge panel, called attention to the dilemma the court faced in considering the case of a lesbian, Kimberly Hively, who alleged that she had been discriminated against by Ivy Tech Community College in South Bend, Indiana.

Hively, who worked as a part-time adjunct professor for many years, claimed that she had repeatedly been passed over for full-time employment and promotions because of her sexual orientation. Her claim was dismissed by the district court in response to a motion by Ivy Tech, which claimed that Title VII does not ban discrimination on the basis of sexual orientation, a holding that the Seventh Circuit had made in other cases decided several years ago.

Feeling bound by Seventh Circuit precedent, the appellate panel affirmed the district court’s ruling, but Judge Rovner spent the great bulk of her opinion describing the changing legal landscape for LGBT people. She noted that the EEOC recently declared that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination is necessarily an allegation of sex discrimination under Title VII.”

She also observed that district and appellate courts have handled the question of whether Title VII prohibits sexual orientation discrimination very differently. Some have disallowed any claims where sexual orientation and gender non-conformity are intertwined, while others have tried to tease apart the sexual orientation and gender non-conformity claims and look only at those that appear to address gender-nonconformity, which the Supreme Court has held is protected under Title VII.

“Whether the line is nonexistent or merely exceedingly difficult to find, it is certainly true that the attempt to draw and observe a line between the two types of discrimination results in a jumble of inconsistent precedents,” she wrote.Â

Noting that since the EEOC ruling that sexual orientation discrimination is sex discrimination, many district courts, which she described as the “laboratories on which the Supreme Court relies to work through cutting-edge legal problems,” are beginning “to ask whether the sexual orientation-denying emperor of Title VII has no clothes.”

Judge Rovner also pointed out that the U.S. Supreme Court rulings in Windsor, which struck down the Defense of Marriage Act in 2013, and in Obergefell, which in 2015 mandated that same-sex couples had a constitutional right to marry, created “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.”

She observed that “Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do—for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men.” Thus, she implied, following the reasoning of Price Waterhouse, sexual orientation discrimination as well as gender identity discrimination should be prohibited.

She characterized the Seventh Circuit precedents that bound her as leading to “the absurd conclusion . . . that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.”

She added: “our [circuit’s] understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.”

The law, she concluded, “protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act or appear straight.”

The unusual decision, which pointed out the absurdity of the current position in the Seventh Circuit, seemed to be begging for the plaintiff to ask for an en banc hearing to reconsider the case. Outdated precedents within a circuit can be overturned only by a Supreme Court ruling or by an en banc review by all the active judges within the circuit.

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In response, Lambda Legal, representing Kimberly Hively, quickly filed a request for an en banc review, which was promptly granted on October 6, 2016. Oral arguments in the case have been scheduled for November 30.Â

Inasmuch as en banc reviews are rarely granted, and seldom expedited as this case apparently has been, it seems likely that the Seventh Circuit will reverse the finding in favor of Ivy Tech and adopt the position of the EEOC that discrimination on the basis of sexual orientation is forbidden by Title VII of the Civil Rights Act.Â

If the Seventh Circuit does reverse, their decision will probably be appealed to the Supreme Court, which may accept it for review in order to render a final decision as to whether Title VII prohibits discrimination on the basis of sexual orientation.

Ian Milhiser, who has described Hively v. Ivy Tech as “the most important gay rights case since marriage equality was won,” has pointed out that if Hillary Clinton is elected president and appoints a liberal justice to replace the late Justice Antonin Scalia on the Supreme Court, SCOTUS will soon be the most liberal court in history. “That opens up the very real possibility that workplace discrimination on the basis of sexual orientation will be illegal throughout the entire nation.”

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News

‘Hunting Grounds’: Trump Cancels Biden Ban on ICE Arrests at Schools, Churches, Hospitals

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January 21, 2025

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The Trump administration has canceled President Joe Biden’s ban on federal immigration agents arresting suspects inside schools, churches, houses of worship, hospitals, shelters, and at events such as weddings, funerals, and public demonstrations and protests.

“This action empowers the brave men and women in CBP and ICE to enforce our immigration laws and catch criminal aliens— including murders [sic] and rapists—who have illegally come into our country. Criminals will no longer be able to hide in America’s schools and churches to avoid arrest,” an unnamed DHS spokesperson said in a statement Tuesday, posted by CBS News’s Camilo Montoya-Galvez. “The Trump Administration will not tie the hands of our brave law enforcement, and instead trusts them to use common sense.”

“The Biden-Harris Administration abused the humanitarian parole program to indiscriminately allow 1.5 million migrants to enter our country. This was all stopped on day one of the Trump Administration,” the spokesperson alleged. “This action will return the humanitarian parole program to its original purpose of looking at migrants on a case-by-case basis.”

CBS’s Montoya-Galvez also reports that the “new DHS team has also instructed officials to begin the process of phasing out programs that allowed certain immigrants to stay in the U.S. under the immigration parole authority.”

“Pro-immigrant advocates had feared the rescission of the Biden-era rules, warning that it would allow the Trump administration to bring its mass deportations plans to churches and schools,” Montoya-Galvez wrote at CBS News.

READ MORE: Rubio Sidesteps J6 Pardons by Declaring ‘I Work for Donald J. Trump’

CNN calls the move “a departure from long-standing policy to avoid so-called sensitive areas.”

Attorney Krish O’Mara Vignarajah, formerly the Policy Director for First Lady Michelle Obama, responded to the news: “Churches, hospitals, and schools all appear to now be hunting grounds for ICE enforcement operations.”

Immigration law attorney Allen Orr Jr. remarked, “It’s never been about safety or national security. It’s about fear—weaponized to isolate and divide.”

In an interview with Fox Business (video below), Trump’s “border czar” Tom Homan was asked on Tuesday, “If and when ICE went into a school to arrest someone, that would be highly contentious, wouldn’t it?”

Homan quickly turned the hypothetical example from a “school,” which could be an elementary school, to a “college campus.”

“Absolutely. But then again, you know, what’s our national security worth?” he replied. “If we have a national security vulnerability that we know is a national security risk, and we have to walk on a college campus to get him, that’s something we have to do.”

Indeed, various Homeland Security officials prior to Trump’s administration have issued similar bans on arrests in sensitive areas. Among them, John Morton, the Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) from 2009 to 2013, under President Barack Obama.

In 2021, DHS Secretary Alejandro Mayorkas issued a new memo, focused on how “we impact people’s lives and advance our country’s well-being.”

READ MORE: Trump Defends His TikTok Flip Flop: America Has ‘Bigger Problems’ Than Young Kids’ Privacy

Mayorkas wrote, “When we conduct an enforcement action – whether it is an arrest, search, service of a subpoena, or other action – we need to consider many factors, including the location in which we are conducting the action and its impact on other people and broader societal interests. For example, if we take an action at an emergency shelter, it is possible that noncitizens, including children, will be hesitant to visit the shelter and receive needed food and water, urgent medical attention, or other humanitarian care.”

“To the fullest extent possible, we should not take an enforcement action in or near a location that would restrain people’s access to essential services or engagement in essential activities. Such a location is referred to as a ‘protected area.’ This principle is fundamental. We can accomplish our enforcement mission without denying or limiting individuals’ access to needed medical care, children access to their schools, the displaced access to food and shelter, people of faith access to their places of worship, and more. Adherence to this principle is one bedrock of our stature as public servants.”

Mayorkas had expanded the list of “protected” or “sensitive” areas to include doctor’s offices, vaccination or testing sites, playgrounds, recreation centers, foster care facilities, and school bus stops, to name a few.

Watch the video below or at this link.

READ MORE: Cannon Blocks Classified Docs Report as Trump Targets Ex-Officials Over ‘Sensitive’ Info

 

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Rubio Sidesteps J6 Pardons by Declaring ‘I Work for Donald J. Trump’

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January 21, 2025

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U.S. Secretary of State Marco Rubio refused to comment on President Donald Trump’s pardons and commutations of more than 1500 people convicted of crimes surrounding the January 6 assault on the U.S. Capitol, including the insurrection — despite having denounced the attack in strong terms four years ago.

In three separate interviews on Tuesday — on ABC News, CBS News, and NBC News — when presented with his comments about the 2021 attack, Rubio declared that he would not discuss domestic issues because he is now Secretary of State.

CBS News’ Gayle King told Secretary Rubio, “in February 2021, even you issued a statement and you said the images of the attack stirred up anger in you, the nation was embarrassed in the eyes of the world by our own citizens.”

“How do you personally reconcile those feelings with the pardons that he did yesterday?” she asked. “I understand you have work to do in the job is hard for many things, but on this particular issue, I’m curious about what you’re thinking.”

“Yeah, well, what I’m thinking is that I used to be a United States senator until midnight last night, and now I’m going about to be sworn in as the Secretary of State of the United States,” Rubio curtly replied. “And that’s what I’m thinking is I work for Donald J. Trump, the new president of United States, the 47th president who has a clear mandate to reorient our foreign policy to one that once again puts America and our interests at the center. And that’s what I’m gonna focus on. A hundred percent.”

READ MORE: Trump Defends His TikTok Flip Flop: America Has ‘Bigger Problems’ Than Young Kids’ Privacy

In an interview with ABC News’ George Stephanopoulos, Rubio would not budge, even when faced with more of his own comments from 2021.

“You called it a national embarrassment, saying we now have third world countries that are lecturing us and we have tinpot dictators that are mocking us,” Stephanopoulos told him. “Of course, you’re now America’s top diplomat. You’ll be speaking with your counterparts around the world. What message does that pardon send to them?”

“Well, I don’t anticipate a single one of our partners will ask about it, obviously, and you know this well, from your time in the [Clinton] administration and my job is to focus on the foreign policy of the United States,” Rubio continued. “I have a different job this morning and a different focus. And it’s one that demands 100% of our attention, and so that’s what I’ll be focused on and won’t be opining on domestic matters at this point, because, frankly, my focus needs to be 100% on how I interact with our, you know, counterparts, our adversaries, our potential enemies around the world to keep this country safe to make it prosperous.”

“That’s the clear mandate from the president,” he added. “It’s what he campaigned on.”

“But as a senator,” Stephanopoulos pressed, “you did say that it affected our standing in the world. Don’t believe that anymore?”

“Well,” Rubio, seemingly somewhat irritated, replied, “as a senator, I had an opinion all kinds of domestic matters, but now I’m focused singularly on foreign policy, on how I interact with our allies.”

President Trump’s pardons of the convicted January 6 attackers, including nearly 90 who committed acts of violence, even against law enforcement officers, were also the subject of Rubio’s interview with NBC News’ Craig Melvin on Tuesday.

According to Fox News, Melvin played video of Rubio saying in 2021, “Vladimir Putin loved everything that happened here today because what happened is better than anything he could have ever come up with to make us look like we’re falling apart.”

Melvin then “asked Rubio what message the pardons send to the rest of the world,” Fox reported.

But Rubio declared that he “would not ‘engage in domestic political debates’ with the media and could not in his role as the head of the State Department.”

READ MORE: Cannon Blocks Classified Docs Report as Trump Targets Ex-Officials Over ‘Sensitive’ Info

“I hope you guys all understand that my days – at least in the time at the Department of State – of engaging in domestic politics will be put aside as I focus on the affairs the United States has around the world and the engagements we have to have to make our country a safer, stronger, more prosperous place,” he said, after refusing to respond.

When pressed again, Rubio apparently expressed frustration.

“I think it’s unfortunate, you know, our first engagement as I agree to come on this morning with you. I’m going to be working on foreign policy issues, and you want to revisit these issues that are going on in domestic politics. I’m just – it’s not going to happen,” Rubio said. “If you have questions for me about foreign policy and engaging in the world, I’d be happy to talk to you about those.”

Watch the videos below or at this link.

READ MORE: Skipping Hand on Bible, Trump Declares ‘We Will Not Forget Our God’ at Inauguration

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Trump Defends His TikTok Flip Flop: America Has ‘Bigger Problems’ Than Young Kids’ Privacy

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January 21, 2025

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President Donald Trump has taken varied stances on TikTok, the wildly popular social media app that experts — including members of Congress and the FBI — warn poses risks to U.S. national security and raises significant privacy concerns for American users. Now, Trump is now disregarding those issues and leveraging his presidential authority to intervene in favor of the Chinese-owned platform, which, under federal law, was to be sold to a U.S. company or banned in the United States by January 19.

“Every rich person has called me about TikTok,” Trump declared to reporters Monday evening, highlighting his newfound relationships with tech billionaires, some of whom were noticeably on stage near him during the inauguration.

About a dozen countries, including the U.S., have banned, fined, or restricted the use of TikTok in various ways, including by children or on government devices, according to a Washington Post report.

Calling it a “national emergency,” Trump in 2020, during his first term as president, signed an executive order aiming to ban TikTok, citing a wide range of issues, including “information and communications technology and services supply chain.”

READ MORE: Cannon Blocks Classified Docs Report as Trump Targets Ex-Officials Over ‘Sensitive’ Info

“Specifically, the spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States. At this time, action must be taken to address the threat posed by one mobile application in particular, TikTok,” his executive order read.

“TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories,” the order stated. “This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”

Trump’s order also cited the risk of censorship by the Chinese Communist Party, and said the app “may also be used for disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.”

Now, Trump is dismissing all those privacy and national security concerns, going so far as to apparently minimize concerns raised about how TikTok reportedly affects children.

In October, NPR reported that “internal TikTok communications have been made public that show a company unconcerned with the harms the app poses for American teenagers. This is despite its own research validating many child safety concerns.”

“As TikTok’s 170 million U.S. users can attest, the platform’s hyper-personalized algorithm can be so engaging it becomes difficult to close the app. TikTok determined the precise amount of viewing it takes for someone to form a habit: 260 videos. After that, according to state investigators, a user ‘is likely to become addicted to the platform.'”

According to NPR, 14 state attorneys general conducted an investigation into TikTok, spanning more than two years.

Investigators in Kentucky wrote that while 260 videos “may seem substantial, TikTok videos can be as short as 8 seconds and are played for viewers in rapid-fire succession, automatically.”

READ MORE: Skipping Hand on Bible, Trump Declares ‘We Will Not Forget Our God’ at Inauguration

“Thus, in under 35 minutes, an average user is likely to become addicted to the platform,” they alleged.

NPR also reported that “TikTok’s own research states that ‘compulsive usage correlates with a slew of negative mental health effects like loss of analytical skills, memory formation, contextual thinking, conversational depth, empathy, and increased anxiety,’ according to the suit.”

“In addition, the documents show that TikTok was aware that ‘compulsive usage also interferes with essential personal responsibilities like sufficient sleep, work/school responsibilities, and connecting with loved ones.'”

Those concerns did not appear to be on display Monday during Trump’s inauguration.

“TikTok’s CEO Shou Zi Chew was seated next to Tulsi Gabbard, President Trump’s nominee to be the director of national intelligence, at the Capitol as Trump was sworn-in,” The Wall Street Journal reported, noting that “the seating of Chew and Gabbard together comes as TikTok is under scrutiny for national security concerns.”

Later on Monday, reporters asked Trump why he flipped his position on TikTok and now supports it.

“Because I’ve got to use it. And remember, TikTok is largely about kids, young kids.”

“If China’s gonna get information about young kids, I don’t know,” he said appearing to shrug off the implications. “I think to be honest with you, I think we have bigger problems than that.”

“But, you know, when you take a look at telephones that are made in China and all the other things that are made in China, military equipment made in China. TikTok, I think TikTok is not their biggest problem.”

Trump went on to make the case for why he says the federal government should own half of TikTok.

“But there’s big value in TikTok if it gets approved. If it doesn’t get approved, there’s no value. So if we create that value, why aren’t we entitled to like half?”

The Washington Post’s Aaron Blake, responding to Trump’s remarks, noted, “Members of the House Energy and Commerce committee saw the intelligence on this and quickly voted 50-0 in favor of the ban.”

Watch the video below or at this link.

READ MORE: Trump Expected to Target Citizenship of Children With Undocumented Parents

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