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By Kristina Udice

Sexual Orientation Discrimination In The Workplace: A History

By Kristina Udice

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Photo credit: AdobeStock/mbruxelle

For years, Americans have fought for their civil rights.

We have fought against racism, sexism, and sexual harassment in the workplace. We have fought against a society dominated by powerful white males that continue to set laws and precedents that disadvantage people of color, women, and those of certain religions. There has been legislation to remedy some of these civil rights atrocities, and while there is still quite a ways to go before we reach true equality amongst all individuals, a large group of people still remain relatively unprotected. I’m talking about those with a sexual orientation that isn’t your standard heterosexuality.

Under current federal law, people are granted no rights, freedoms, or safeties based on their sexual orientation, sexual identity, or gender identity. This means that if you are gay, lesbian, queer, asexual, bisexual or pansexual (to name a few gender identities), there are not federal protections ensuring you’re protected against harassment and discrimination.

But what does sexual orientation mean? You’ve heard the phrases, you’ve seen the words and cries for equality, but do you actually know what the differences are?

Sexual orientation has to do with a person’s sexual identity, and what gender they are attracted to. These relationships have to do with sexual and romantic inclinations. Many people get sexual orientation confused with gender and gender identity, which is an entirely different topic. Gender identity is solely about what gender a person identifies with, either in congruence or in opposition to their sex at birth. To put it simply, sexual orientation is external (how you relate to others) and gender identity is internal (the gender you personally identify with).

That’s why being transgender isn’t the same as being lesbian, gay, bisexual, or any other number of sexual orientations. And speaking of sexual orientations, there are many — and that list is only expanding and evolving as people feel more empowered to define their sexuality in ways that are more personally befitting of their experiences and taste. Below, we'll look at six of the major sexual orientations — heterosexual, homosexual, bisexual, pa. This list is certainly not comprehensive, but is a good place to start.

Heterosexuality

This is the most well-known and historically accepted of all the sexualities. If you are heterosexual, you are attracted to a sex that is not your own (the most common understanding of this being a cisgender, non-binary person attracted to the opposite binary). If you are heterosexual, you would be considered “straight.”

Homosexuality

This is probably the second most well-known sexuality. It you are homosexual, you are attracted to the sex that is the same as your own. Gay and lesbian fall into the homsexuality category.

Bisexuality

Probably the third most well-known sexual orientation is bisexuality. If you are bisexual, you are attracted to partners of both the same and opposite sex or gender. The most common understanding of this is that it occurs alongside the gender binary, with "bi" referring to attraction to both men and women. However, on a broader scale, it could also mean you are attracted to those who are both femme-identifying and male-identifying. It's also important to note that one need not have been in a relationship, sexual or otherwise, with more than one gender in order to be bisexual; the identity can exist independent of action, in other words.

Pansexuality

If you are pansexual, you have a lot in common with those who are bisexual, as pansexuality means you are attracted to people of all genders. Where the difference lies, however, is in the types of genders pansexuals are attracted to. Typically pansexuality exists not just along the lines of cisgender, binary identity, but also includes attraction to transexual individuals, intersex individuals, and gender-queer individuals, to name a few. Pansexual people are attracted to all sexes and genders.

Queer

Queer is a tough one to define, as it’s all about breaking from stereotypical or traditional gender and sexual roles. If you are queer, you don’t have a set standard for physical and sexual attraction. It’s very ambiguous, and you prefer it that way.

Asexuality

Asexuality means having little to no sexual inclination towards another person — regardless of sex or gender. Their relationships are purely romantic or emotional, not physical.

The intricacies of these sexual orientations could seem confusing, but once you take the time to understand them, they will become second nature. And that’s important and necessary step to ensuring open, welcoming, and comfortable working environments for all people.

That being said, we still have a ways to go before all sexual orientations are accepted in the U.S. In fact, there is very little legislation that protects against sexual orientation discrimination.

As of 2017, there are federal anti-discrimination laws that protect individuals from discrimination based on sex, race, national origin, religion, age, pregnancy status and disability. These laws were put in place by Title VII of the Civil Rights Act of 1964. However, there are no laws that protect against discrimination against a person based on their sexual orientation at a federal level in the private sector.

Some states have taken this matter into their own hands, creating laws that protect individuals from this harassment and discrimination in private and public sector. These states include: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.

The remaining states legally allow for the discrimination against sexual orientation, which extends from harassment to actually being fired for your sexual orientation.

So, what does sexual orientation discrimination entail in states where discrimination is illegal?

This discrimination entails harassment, either sexual harassment or non-sexual harassment, based on sexual orientation. It also includes differential treatment based on sexual orientation. Things like getting passed over for a promotion, not getting a raise, not being chosen as a project manager, and the like due to a person’s perceived sexual orientation.

It’s mindblowing to think that in 2017, we are still fighting these battles — I mean, what does sexual orientation have to do with individual employment and work performance? Is it anyone’s business? And why has the U.S. not been more proactive on this front? Sixty-one countries around the world have already enacted legislation against sexual orientation discrimination — why has America fallen so far behind the times?

Here’s a brief timeline on the history of LGBTQA rights in the United States:

1924: The first-ever gay rights group is founded.

It was called the Society for Human Rights in Chicago. It was founded by Henry Gerber, a veteran of World War I. This group was behind the first recorded gay rights publication, a newsletter called “Friendship and Freedom.”

1952: Homosexuality diagnosed as a disorder.

In April, the American Psychiatric Association's diagnostic manual listed homosexuality as a sociopathic personality disturbance.

1955: The first lesbian rights group is founded.

Formed in San Francisco, the first ever lesbian civil rights group was founded. They called themselves the Daughters of Bilitis (DOB). This organization hosted private events because police were ordering raids in bars and clubs across the city.

1958: The Supreme Court rules in favor of gay rights for the first time.

A case was brought all the way to the supreme court after the U.S. Post Office refused to deliver a pro-homosexual publication. It was called ONE: The Homosexual Magazine. The court ruled that the U.S. Post Office had to deliver the magazine, marking the first time the U.S. government ruled in favor of the LGBTQ community.

July 1961: The first state decriminalizes homosexuality.

Illinois became the first state to decriminalize homosexuality — not explicitly, but the state repealed its sodomy laws in July of this year.

1969: The Stonewall riots ignite the LBGTQ movement.

On June 28, the police performed a raid on a notoriously homosexual club called the Stonewall Inn in New York City. During the raid, which was one of many that occurred here, the patrons fought back against police. This led to a days-long protest with violent riots. The “Stonewall Riots” have since gone down in history as the beginning of the civil rights movement for the LGBTQ community.

1970: The one year anniversary of Stonewall sparks a city-wide march.

One year after the “Stonewall Riots,” members of the LGBTQ communit in New York City march to commemorate the riots. This march is named Christopher Street Liberation Day. It is now seen as the first-ever pride parade.

1973: The first state bans same-sex marriage.

Maryland becomes the first state in the U.S. to formally ban same-sex marriage.

1973: Homosexuality is no longer considered a mental illness.

The American Psychiatric Association’s board decided to remove homosexuality from the list of mental illnesses included in the Diagnostic and Statistical Manual of Mental Disorders. It was later put to a vote by its members who agreed.

1974: The first openly gay official is elected to state office.

In Massachusetts, Elaine Noble was elected to the Massachusetts State legislature. She is the first openly gay candidate ever elected to state office.

1978: Harvey Milk wins office.

Harvey Milk, the first openly gay man to run for elected office in California, is elected city supervisor in San Francisco.

1982: Sexual orientation discrimination becomes illegal in Wisconsin.

On March 2, 1982, Wisconsin became the first state to outlaw discrimination based on sexual orientation.

1993: Don’t ask, don’t tell.

In November, then-president Bill Clinton signed a military policy that disallowed gay and lesbian Americans to openly serve in the military. It also prohibited the harassment of individuals who weren’t open about their sexual preferences. This policy was known as “Don’t Ask, Don’t Tell.”

1996: DOMA.

In September, then-President Bill Clinton signed into law the Defense of Marriage Act. This act banned the federal government from recognizing same-sex marriage as legal. It went on to define marriage as a union between man and woman.

2000: Vermont legalizes same-sex marriage.

Vermont became the first state in the U.S. to legalize same-sex couples. This allowed same-sex couples to enter into civil unions. These are legal partnerships that give couples the same governmental rights as married, heterosexual couples.

2004: The first same-sex wedding is conducted.

This year, the first same-sex wedding occurs. It’s the first instance of same-sex marriage in the country and it takes place in Massachusetts.

2011: Don’t Ask, Don’t Tell ends.

In September of this year, President Obama revoked the discriminatory “Don’t Ask, Don’t Tell” policy officially.

2013: DOMA ends.

In June of this year, the Defense of Marriage Act (DOMA) was ruled unconstitutional by The Supreme Court. Same-sex couples, which had previously been denied benefits, could now receive them.

2015: The LGBTQ community is formally recognized in the State of the Union Address.

For the first time in the history of the Uniteed States, the words, “bsexual,” transgender,” and “lesbian” were uttered by President Barack Obama during his State of the Union Address. He used these words to express the need to “respect human dignity” across the nation.

2015: President Obama appeals to parents and organizations to end conversion therapy.

This was in response to yet another teenager who committed suicide after undergoing conversion therapy. After this incident, President Obama took to the stage to condemn these actions and called for the end of conversion therapy for changing sexual orientation and gender identity.

2015: Sexual orientation discrimination is added to the military’s anti-discrimination policy.

Sexual orientation had yet to become a protected class in the military until June of this year when the U.S. announced that this protection would be added.

2015: The Supreme Court makes same-sex marriage legal.

In July, The Supreme Court ruled that same-sex marriage was, in fact, a Constitutional right across the country.

2015: The Equality Act is introduced into legislation.

An equality act was formerly introduced to congress by Senators Jeff Merkley, Tammy Baldwin, Cory Booker, and Representative David Cicilline. It was called The Equality Act, and its goal was to give LGBTQ individuals increased protections in education, housing, credit, employment, class and more.

2016: Stonewall Inn deemed a national monument.

Announcements were made by the Obama Administration in May that declared the infamous Stonewall Inn as a national monument, with places to restore the historic site.

It’s been a long road for LGBTQA people in this country, and the court cases that have handled the issues of sexual orientation and gender identity are many. Here’s a breakdown of court cases about sexual orientation discrimination, how they’ve shaped the current political landscape, and where we can go from here.

Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998)

In this case, the supreme court upheld the rights of individuals who suffered harassment based on sexual orientation according to Title VII — a milestone decision at the time. But even though this was technically a win, Justice Scalia made it very clear that the he believed behavior being harassed (a person’s sexual orientation) was wrong.

"[Same-sex harassment is] assuredly not the principal evil Congress was concerned with when it enacted Title VII . . .statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits 'discriminat[ion] . . . because of . . . sex.' [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements."

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Another U.S. Supreme Court Case, this one concluded that making assumptions and basing decisions off sexual stereotypes, like how to dress, talk, and sexually behave was innately discriminatory under Title VII.

"[I]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender," the court ultimately ruled.

Hively v. Ivy Tech Cmty, Coll. of Ind., __ F.3d __, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)

In this case, the United States Court of Appeals For The Seventh Circuit overturned a prior precedent, agreeing with the EEOC that discrimination based on sexual orientation was illegal according to Title VII. It was rationalized by saying that sexual orientation discrimination is also sex discrimination.

Chief Judge Wood had this to say: “Hively alleges that if she had been a man married to a woman . . . and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. . . .This describes paradigmatic sex discrimination."

Lawrence v. Texas 539 U.S. 558 (2003)

In this case, a previous precedent was again overturned. The defendants in the case had been convicted of engaging in homosexual conduct which they then appealed. In the end, the SUpreme Court overturned a precedent that had been put in place after court case Bowers v. Hardwick 478 U.S. 186. The court ruled that the statute in Texas that said that the engaging in sexual acts between two people of the same sex was illegal was, in fact, unconstitutional as these were two consenting adults in the privacy of their own home.

EEOC v. Scott Med. Health Ctr., P.C., __ F. Supp. 3d __, 2016 WL

One of the biggest rulings of the last few decades came in 2016. In this case, the EEOC claimed that a teleworker was harassed and discharged based on their sexual orientation. The EEOC state that this discrimination was the same as sex discrimination condemned by Title VII.

"Title VII's 'because of sex' provision prohibits discrimination on the basis of sexual orientation. There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, ‘[d]iscriminating against a person because of the sex of that person's romantic partner necessarily involves stereotypes about 'proper' roles in sexual relationship-that men are and should only be sexually attracted to women, not men,’” the court ruled.

Over the course of the last few decades, there has been a lot of back and forth when it comes to discrimination based on sexual preference. As you’ve seen, precedents get overturned all the time, but even now with the current administration in place, there have been slights and pushbacks against the LGBTQ community. This recent ruling by the U.S. Supreme Court brings home for future rulings and legislation, but they still have yet to come. There is still no federal statute when it comes to sexual orientation discrimination, even though new precedents have been put in place.

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