Karen Pence, the wife of Vice President Mike Pence, garnered national attention this month after she returned to work at an evangelical Christian school that bars LGBTQ employees and students. While the Virginia school’s policies sparked criticism, they also highlighted the complicated patchwork of employment protections for lesbian, gay, bisexual and transgender workers across the country.
“If you are an LGBT employee in the U.S., you face a very complicated legal landscape when it comes to whether or not you can be discriminated against by a prospective employer,” Ineke Mushovic, executive director of Movement Advancement Project, an LGBTQ think tank, told NBC News.
This “complicated legal landscape” involves conflicting court rulings, differing interpretations of civil rights laws by federal agencies, a patchwork of state laws and carve outs for religiously affiliated organizations.
For starters, there is no federal law that expressly prohibits employment discrimination on the basis of sexual orientation and gender identity. However, LGBTQ workers across the U.S. have called upon Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of “sex,” to take their employers to court.
These efforts have produced a body of case law in which some courts have interpreted “sex” to include sexual orientation and gender identity, and others have not. The issue has so far been before several federal appeals courts (one level below the Supreme Court) with a mix of results.
In April 2017, the 7th Circuit Court of Appeals ruled in favor of educator Kimberly Hively, arguing that her employment termination due to her sexual orientation is in fact covered by Title VII protections. The 11th Circuit, by contrast, declined in December 2017 to reconsider the case of another woman, Jameka Evans, who also alleged employment discrimination on the basis of her sexual orientation and gender-nonconformity. Last February, the 2nd Circuit Court of Appeals joined the 7th Circuit in affirming lesbian, gay and bisexual workers’ rights in Zarda v. Altitude Express by ruling that Donald Zarda, a skydiving instructor, had been unlawfully fired for being gay. (Zarda died in 2014.)
While these three cases all involve discrimination based on sexual orientation, Anthony Kreis, a professor at Chicago-Kent College of Law, noted there is stronger precedent for understanding “sex” discrimination to encompass gender identity discrimination.
The 6th Circuit Court of Appeals, for example, sided with transgender woman Aimee Stephens and the Equal Employment Opportunity Commission in March 2018, ruling that Title VII protects trans workers and that an employer’s religious beliefs cannot be used to justify discrimination on the basis of gender identity.
Karen Pence’s employer, Immanuel Christian School, is in Virginia, which falls within the jurisdiction of the 4th Circuit Court of Appeals. This court has not ruled on the issue. An LGBTQ person denied a job at this school or any other Virginia workplace based on her sexual orientation or gender identity would have a harder time succeeding in the courtroom than if she were in a state covered by the 2nd or 6th Circuit courts, for example.
The Supreme Court is currently considering whether to review three of the appeals court cases that ruled on whether “sex” discrimination covers discrimination based on sexual orientation and gender identity. If the high court takes up the issue, its decision on the matter will apply across the U.S. Until then, however, the issue continues to play out in lower courts.
It is important to note, however, that Title VII does not cover all establishments. Even if the Supreme Court did resolve the split in the circuit courts and find in favor of LGBTQ plaintiffs, Title VII only applies to businesses with 15 or more employees.
EEOC vs. DOJ
The issue of LGBTQ employment discrimination has also been raised by federal agencies — and their interpretations of “sex” discrimination in the workplace have not been consistent.
The Equal Employment Opportunity Commission, an independent federal agency tasked with enforcing federal anti-discrimination law, has interpreted sex discrimination to include discrimination on the basis of sexual orientation and gender identity. This interpretation dates to the Obama administration.
In 2012, for example, the commission found in favor of veteran Mia Macy, holding for the first time that discrimination against transgender employees is covered by the federal sex discrimination law. Then in 2015, the EEOC sided with air traffic controller David Baldwin, concluding that Title VII covers sexual orientation as well.
In a unique twist, the Department of Justice filed a brief last year in the Aimee Stephens case, which lists the Equal Employment Opportunity Commission as Stephens’ co-defendant. The DOJ sided not with its fellow federal agency but with the funeral home that terminated Stephens after finding out she is transgender.
In its court brief, the DOJ stated that Title VII “does not apply to discrimination against an individual based on his or her gender identity.”
The Stephens case is among the three cases the Supreme Court is considering whether to review.
Even if someone is in a part of the country where an appeals court has interpreted that Title VII covers sexual orientation and gender identity claims, Kreis noted “there are religious exemptions which would make murky the extent to which it would apply.”
Title VII includes both a “religious organization exception” and a “ministerial exception” for religious institutions, meaning that nondiscrimination laws do not apply to them in some circumstances.”
The “religious organization exception” states that under Title VII, “religious organizations are permitted to give employment preference to members of their own religion.” The exception does not, however, “allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability.”
The “ministerial exception” applies “only to employees who perform essential religious functions,” like a pastor or a religion teacher, and permits religious organizations the right to manage their employees who provide religious guidance or instruction without government intervention, Kreis explained.
Under the “ministerial exception,” for example, if Karen Pence’s employer, which is a religiously affiliated school, were in New York, which is covered by the 2nd Circuit ruling that prohibits sexual orientation discrimination, it may still be able to refuse to hire a gay person to teach a religion class.
“When you have a religious entity, whether it be Catholic charities, a church or a religious school, we have different rules that apply,” Kreis said. “We do acknowledge as a society that people of faith need some breathing room in terms of organizing their own communities.”
However, Kreis added, while religious organizations are given a “degree of freedom,” when it comes to hiring employees, “that space shouldn’t be a free-for-all either.”
Kreis noted that if a religious entity receives some form of government funding, it often must abide by certain nondiscrimination statutes. “If they are taking either federal or state funding, there are restrictions that come with that,” he said.
In addition to Title VII’s exemptions, religious organizations may also claim protections under the 1993 Religious Freedom Restoration Act (RFRA), a federal law that guarantees religious freedom.
RFRA is at the center of a suit filed in 2017, where the ACLU is representing Lonnie Billard in a case against the Roman Catholic Diocese of Charlotte and several North Carolina Catholic schools. Billard says he was fired as a substitute teacher after posting on social media about his plans to marry his male partner. He claims defendants discriminated against him because of his sex in violation of Title VII. The Diocese, however, contends it had a right to fire Billard, making the case that RFRA ensures its religious freedom in the matter. The case is back in court next month.
STATE LAWS & EXECUTIVE ORDERS
In the absence of federal legislation, 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination based on sexual orientation and gender identity, according to Movement Advancement Project. Three additional states offer some form of LGBTQ workplace protections.
Virginia, where the Immanuel Christian School is, is among the 26 states that do not expressly protect against discrimination based on sexual orientation and gender identity. While two pieces of nondiscrimination legislation have received support for several years in the Virginia Senate, they have yet to receive a vote in the House of Delegates.
Forty-eight percent of LGBTQ people in the U.S. live in states with no state-level employment protections, according to Movement Advancement Project. However, the organization notes that many cities and counties have passed local ordinances that prohibit this form of workplace discrimination. Alexandria, a Virginia city just 20 minutes east of Springfield, where Immanuel Christian School is, is one of those cities.
Executive orders issued by governors are another potential source of employment protection. In the past three weeks alone, four governors have signed measures protecting LGBTQ workers from employment discrimination.
While these executive orders do provide recourse to LGBTQ workers in states without nondiscrimination laws, they are not as legally robust as state laws. For one thing, they are easily overturned, as then-Gov. Sam Brownback of Kansas did in 2015 when he reversed his predecessor’s executive order protecting LGBTQ employees.
LGBTQ activists have long argued for federal legislation that would do away with the current “complicated legal landscape” and eliminate any ambiguity when it comes to LGBTQ workplace protections.
In this election cycle, House Democratic leadership renewed a promise to pass the Equality Act, which would explicitly add sexual orientation and gender identity to the Civil Rights Act of 1964.
“Most Americans agree that you should be judged on the quality of your work,” Mushovic argued. “It shouldn’t take lawsuits to figure that out.”