University of Georgia

Terry College of Business
 

According to a 1994 Mellman, Lazarus & Lake poll, 70% of the American public are unaware that federal civil rights laws do not prohibit firing a person solely on the basis of his or her sexual orientation.⁽¹⁾
 
 

This paper was prompted by two unrelated personal encounters I experienced within the last couple of years. Together, they made me realize the necessity for providing information on this proposed legislation.

In the first encounter, during the 1993 March on Washington for Lesbian, Gay and Bi Equal Rights in 1993, which I attended, two days before the March, I had a long discussion with my family. I had been in town for the week leading up to the March helping in the March office. My family, who lives in D.C. where the March was to take place, had seen little of me because of my busy schedule. Finally, I dragged in late on Friday night, a day away from the March, only to be greeted by my family. They knew I was in town for the March, but knew little of the particulars, other than that it was big, and it meant a lot to me. Late though the hour, they wanted me to take some time to provide them a bit of insight into the whys and the wherefores.

A teacher by nature, I was only too glad to clue them in. We had a long and pleasant discussion about the issues and ins and outs of the March. Finally, as my generally-conservative-on-this-issue brother was leaving, he told me that even though he had originally been against the March because he had only heard the biased hype about it, he was now sorry that prior commitments did not permit him to be there to march with me (On the morning of the March, he was scheduled to preach the trial sermon for a large church he was applying to pastor. Luckily, he got the job.) "Besides," he said as he opened the door to leave, "It's not as if gays and lesbians can't get jobs or can be fired from their jobs for being gay, or anything."

l was stunned My own brother was one of the 70% mentioned in the opening quote above. I was surprised that after the conversation we had just had, he still didn't realize this basic fact of life for gays and lesbians. In fact, for me it was exactly the opposite. I was so used to that fact as a given reality, that it never occurred to me that I hadn't even mentioned it during our talk.

On the other hand, my brother was completely stunned that a qualified person could be terminated from his or her livelihood based solely on his or her affinity orientation.⁽²⁾

It had never even occurred to him that the government would allow such a thing. In his view, personal preference as to who one wanted to associate with was one thing, however, permitting it to cost someone a job was quite another. In his view, basic fairness dictated that everyone deserved to make a living. To him, this was patently unfair, and the fact that the government would actually allow it, unfathomable.

In the other impetus event, I recently asked a friend knowledgeable about employment law issues, how the proposed Employment Non-discrimination Act (ENDA) legislation was coming along in Congress. The person informed me that he had no idea what the proposed law was. He had never heard of it. Since there had been a great deal of hoopla about it's introduction, I was rather surprised at this response. However, it occurred to me that if he did not know about it, a's knowledgeable as he was in the area, there were probably others who also were not aware of it.

As a result of these two events, and because of the increasing number of cases brought by gays and lesbians for, among other things, workplace discrimination, and since the proposed law (or something similar) may one day become actual law, it seemed appropriate to use the proposed law as the basis of a paper providing information on the issue.

After the March on Washington in 1993 voiced the urgent need for protection of gays and lesbians from job discrimination, the Employment Non-Discrimination Act was the federal legislation introduced in Congress to address the problem of gays and lesbians⁽³⁾

being discriminated against in the workplace solely on the basis of affinity orientation. In introducing H.R. 46364⁽⁴⁾

to Congress on June 23, 1994, co-sponsor Gerry E. Studds of Massachusetts said that history was being made.⁽⁵⁾

According to Studds, it marked the first time that federal legislation was introduced specifically to provide redress for job discrimination based on affinity orientation. To the surprise of no one, the bill was not passed into law in 1994, but was re-introduced in 1995 and is still in active consideration.

ENDA would prohibit discrimination in employment on the basis of affinity orientation, whether the orientation was perceived or actual. It would provide no special rights or privileges. Rather, it would merely codify what many Americans already think is the case, to wit, that qualified employees would not be able to be rejected for employment or discharged from employment, for merely being or being perceived to be gay, lesbian, or bisexual.⁽⁶⁾
 

Cautiously drawn to address even the most minute problems which have surfaced as the basis of resistance to such legislation, the proposed law quickly puts to rest all sticking points. Under the proposed law, the disparate impact provisions of Title VII of the Civil Rights Act of 1964⁽⁷⁾

would not apply, quotas and preferential treatment are specifically outlawed, it would not apply to providing employee benefits to partners of a gay or lesbian employees, and exemptions are provided for religion and military purposes.

In this paper, I will endeavor to shed some light on the proposed law. That is, what the present state of the law is regarding the subject matter covered by the law, what the proposed law is, what it is not, why it is needed, and what the drawbacks to the law are.
 
 

Presently, Title VII's prohibition against discrimination on the basis of gender has been interpreted as not extend to discrimination on the basis of affinity orientation. Many cases have been brought to challenge this interpretation of the law, and virtually all of them were interpreted not to extend Title VII coverage into this area.⁽⁸⁾

Generally speaking, gay, lesbian or bisexual employees who experience employment discrimination have little recourse against the employer under federal law. While there is presently no specific law protecting gay and lesbian employees from job discrimination, there is a patchwork quilt of laws that may apply, depending upon the type of employment the employee holds and the jurisdiction the employee is in.
 
 
 
 
 
 
 

Public Employees

If the terminated employee is employed by the state or federal government, there is the possibility of bringing suit against the employer on the basis of a violation of state or federal equal protection and due process of law provisions.

The procedural due process case would allege that the termination of the gay or lesbian employee violated procedural due process in that the employee was not provided with proper notice or an opportunity to be heard prior to the termination taking place. The substantive due process argument would address the fairness of the law itself. The employee would allege that the state's termination of the employee for being gay, lesbian or bisexual is unfair and would deprive the employee of a personal or property right guaranteed by the constitution.

The equal protection argument would assert that the employer treated the gay, lesbian or bisexual employee differently from other similarly situated employees, for no reason which is justified in law.⁽⁹⁾

Briefly, in order to make a viable equal protection argument, the employee would have to demonstrate that he or she was either a member of a suspect class requiring that there be a compelling state interest justifying the difference in treatment which will withstand strict scrutiny analysis by the court, or that there is a rational basis for the difference in classification. The latter is only permitted where the difference in treatment is based on business or economic reasons, rather than on the basis of the employee belonging to a suspect classification.

If the classification does not fit into the category of a suspect classification for which the compelling state interest test is used, then the more lenient, less demanding analysis of rational basis test is permitted. Generally, this results in the employer's actions being upheld, since the employer need only show a rational basis for the action, rather than that a compelling state interest is being served. In using the rational basis test, the employer need not show the action necessarily made the most sense, but rather, that it is rationally related to the articulated statutory purpose given for the difference in treatment between gay and non-gay employees.⁽¹⁰⁾

The burden of showing that the reason for a government action is not irrational is generally a rather light one employers have no trouble meeting.

So far, race, nationality and alienage are the only categories having been squarely given the mantel of suspect classification which has resulted in the automatic use of the compelling state interest test.⁽¹¹⁾

The Court has also recognized quasi-suspect classifications,⁽¹²⁾

but at least one court has rejected putting gays and lesbians in this category.⁽¹³⁾

That middle-ground between suspect class and rational basis would require a showing that the government action be "substantially related to a legitimate state interest."⁽¹⁴⁾
 

Under the more lenient rational basis test, it is not difficult for employers to justify the difference in treatment between gay and non-gay employees. While courts have generally moved away from permitting a difference in treatment based solely upon the employee's status or identification as gay or lesbian,⁽¹⁵⁾

it usually does not take much to show that being gay or lesbian is, in some way (remotely or otherwise) related to job performance. For instance, it was routinely used to justify treating gay and lesbian employees differently because of the possibility of security risks from discovery of their affinity orientation,⁽¹⁶⁾

evenwhen the employee does not actually hide the fact that he or she is gay or lesbian, so that "discovery" is not an issue.⁽¹⁷⁾
 

On the other hand, and much to their credit, some state and local jurisdictions have actually adopted laws specifically protecting gay and lesbian public employees from job discrimination, thus sparing them this legal wrangling over equal protection classification or due process.⁽¹⁸⁾
 

Private Employees

For private employees, the picture is not significantly different. Unless the employee lives in one of the few states that have anti-discrimination laws, there is virtually no protection from being terminated from employment simply for being gay, lesbian, or bisexual, or being perceived as such. Under the prevailing employment-at-will doctrine, employers may terminate at-will employees for any reason which is not illegal (such as the termination violates Title VII of the Civil Rights Act of 1964, etc.). Terminating an employee for being gay or lesbian certainly fits into the reasons which would be allowed under the employment-at-will doctrine, since the employer actually need no reason at all

However, not all states fit into this scenario. Nine states and the District of Columbia, have passed laws specifically prohibiting employment discrimination against gays and lesbians. The nine states which have such laws are Wisconsin, California, Massachusetts, Hawaii, Connecticut, New Jersey, Minnesota, Vermont and Rhode Island. Over 125 municipalities⁽¹⁹⁾

also have such legislation on their books, including at least 71 cities and counties with civil rights ordinances, at least 41 cities or counties with council or mayoral proclamations banning discrimination in public employment, and at least 14 states with executive orders. Administrative structures vary, but in the jurisdictions which have such laws, gay and lesbian employees may not be arbitrarily terminated from employment simply because they are gay or lesbian.

In states which offer no specific legal protections, gay and lesbian employees can still attempt to pursue what they consider to be an unfair or unwarranted termination through the state's usual civil law provisions. For instance, as appropriate under the facts in their case, gay and lesbian employees can bring suit on the basis of breach of contract, interference with contractual relations, defamation, invasion of privacy, or intentional infliction of emotional distress. Specific states may have some other type of civil action which may form the basis of litigation for loss of the gay or lesbian employee's job.

Thus, in the private sector, gay and lesbian at-will employees have no solid job protection unless they are in D.C. or one of the 9 states or several municipalities which have anti-discrimination laws, or their facts are such that they can bring an action under civil law. In the public sector, the government employee can bring suit on the basis of a denial of due process or equal protection, but the track record for winning these cases has not been favorable for employees since the more lenient standard is imposed on the employer and it is not difficult to justify their actions as rationally related to a stated purpose.
 
 

ENDA would change this. Rather than have this crazy quilt of possible coverage for job discrimination against gays and lesbians, it would make a single federal law which probits employment discrimination against them. The law would require employers to treat gay, lesbian or bisexual employees no better, and no worse, than other employees who are not gay or lesbian. All it does is remove from the list of items to be considered for employment, the employee's personal sex life or related matters which would otherwise not be considered in passing on the consideration of any other employee. Though it does not do so formally, the law would basically add affinity orientation to the list of protected categories under Title VII. It would, however, limit this category in significant ways (such as not permitting disparate impact to apply as it does under Title VII.)

Below are the main features of the law and an explanation of the provision. This is followed by the general provisions of the law regarding its enforcement and administration.

Section 3 Definitions As used in this Act: land as here relevant]

(5) Employment or employment opportunities.-Except as provided in section 9(A)(l), the term "employment or employment opportunities" includes job application procedures, hiring, advancement, discharge, compensation, job training, or any other term, condition, or privilege of employment.

Note that the discrimination relieved by this statute would not be limited to mere job termination. It would include the full range of employment decisions which impact not only obtaining a job. but also keeping one and progressing in it.

(8) Religious organization.-The term "religious organization" means

(A) A religious corporation, association, or society; or

(B) A college, school, university, or other educational institution, not otherwise a religious organization, if

(I) it is in whole or substantial part controlled, managed, owned, or supported by a religious corporation, association, or society; or

(II) its curriculum is directed toward the propagation of a

particular religion.

(9)Sexual orientation.-the term "sexual orientation" means homosexuality, bisexuality, or heterosexuality, whether such orientation is real or perceived.
 
 
 

Section 4 Discrimination Prohibited A covered entity, in connection with employment or employment opportunities, shall not

(I) subject an individual to a different standard or different treatment on the basis of sexual orientation;

(2) discriminate against an individual based on the sexual orientation of a person with whom such individual is believed to associate or to have associated; or

(3) otherwise discriminate against an individual on the basis of sexual orientation.

The law would not only prohibit treating gay and lesbian employees differently based on their being gay or lesbian, but it would also protect other employees who associate with the gay or lesbian employees. Often, part of the problem that arises when the gay or lesbian employee is permitted to remain on the job, is that they are gradually isolated. It then becomes intolerable to work in such conditions and the employee leaves but cannot say that he or she was terminated, thus limiting benefits such as unemployment. This isolation is aided by the fact that an employer can not do anything significant to the employee, him- or herself, but can make it objectionable for others to associate with the employee.

This provision would address that. By not only protecting the gay and lesbian employee, but also those who associate with the employee, it more realistically addresses the reality of the situation.
 
 
 
 
 
 
 

Section 5: Benefits This Act does not apply to the provision of employee benefits to an individual for the benefit of such individual 's partner.

Several jurisdictions have allowed employee benefits to be extended to those who are significant to the employee. This is usually done in conjunction with domestic partnerships. The domestic partners of their unmarried employees, whether or not they are gays and lesbians, are able to have benefits through the employee. Some employers do this only where the jurisdiction has made provisions for domestic partnerships to be registered with the government.

Domestic partnerships are personal, generally, affinity, relationships which receive recognition by the jurisdiction, but do not amount to marriage. It does, however, allow for the employers who wish to do so, to extend benefits to those duly registered as domestic partners.

Domestic partnerships are generally based on establishing to the satisfaction of the governmental entity, certain basic facts it then uses to grant the status. For instance, most domestic partnership laws require that the partners demonstrate that they have been living together in a relationship of mutual care and support for a certain minimum time span-usually six months. This can be shown by any appropriate means, including bills addressed to the partners at the same address, affidavits, designation as an insurance beneficiary, power of attorney, caretaker designee for living wills, etc.

In recognition of the plight of gay and lesbian employees, some employers who have extended benefit coverage to domestic partners, have done so only to those who are gay and lesbian, though domestic partnerships need not be only between gays and lesbians. They have done so because of the realization that their gay and lesbian employees do not have the option to marry, as their non-gay employees do. Thus, they use the domestic partnership statutes solely to substitute for a "marriage" between their gay and lesbian employees.

All this notwithstanding, ENDA specifically recognizes that though domestic partnerships may exist, just because a jurisdiction has them, does not mean that the employer is required by ENDA to extend benefits to gay and lesbian employees registered as domestic partners. It does not prohibit the employer from extending such benefits. Rather, it prevents the gay or lesbian employee from being able to use the law as a basis for demanding extension of such benefits.
 
 
 

Section 6: No Disparate Impact The fact that an employment practice has a disparate impact, as the term "disparate impact" is used in section 703(k) of the Civil Rights Act of 1964 f42 . 2000e-2(k)), on the basis of sexual orientation does not establish a prima facie violation of this Act.

Under Title VII of the Civil Rights Act of 1964, there are two theories upon which cases can be brought: disparate impact and disparate treatment. Disparate treatment is an individual theory of discrimination. The employee alleges that he or she was treated differently than other similarly-situated employees. Since no job-related criteria is the basis for the difference, the presumption is that the basis for the difference is the only issue left when those are disposed of: a characteristic prohibited under Title VII from being the basis of employment decisions, i.e., race, gender, etc.⁽²⁰⁾
 

The second theory, disparate impact, is a group theory rather than an individual one. Under this theory, the employer who has a screening device or policy neutral on its face, will be presumed to have discriminated if the impact of the policy is that a minority group protected by Title VII is screened out and does not fare at least 80% as well as the majority group under the policy. That is, if there is more than a 20% disparity between the majority and minority based on the policy, the policy will be presumed to be discriminatory. This presumption can be rebutted by the employer showing the policy is justified on the basis of legitimate, nondiscriminatory business reasons. If the reasons are shown to be valid and job related, then the employer's policy, though it has a disparate impact, is protected. Unfortunately, since many of the employer's policies are not related to actual job performance, they cannot survive the justification question.

While disparate treatment is an intentional and individual theory of discrimination, disparate impact is an unintentional and group theory of discrimination. Under disparate impact, it does not matter that the employer's policy is neutral on its face and applies equally to everyone. If it has a disparate impact on a group protected by Title VII, then it can be struck down as violative of Title VII unless it is justified by business purposes.

This group-type theory has permitted policy's to be struck down which were neutral on their face, but had the impact of keeping groups of protected people out of the workplace based on height, weight, race, and gender. Though the employer's minimum height and weight requirement for police officers or firefighters applied equally to everyone, they had a disparate impact upon women and Asians who tended to be of slighter build. Since the employers could not show that people of less than the minimum height and weight requirements could not do the job, and thus justify the screening devices as necessary for the positions, they were struck down.

ENDA would not allow this disparate impact theory as a basis for discrimination on the basis of being gay or lesbian. An employee would not be able to show, for instance, that a policy requiring that employees be married, has the impact of keeping gays and lesbians out of the workplace at an unacceptable rate (since they are unable to enjoy the benefits of marriage to the same gender partner of their choice). Despite the disparate impact, the employee would not be able to attack it.
 
 
 
 
 
 
 

Section 7: Quotas and Preferential Treatment Prohibited (a) A covered entity shall not adopt or implement a quota on the basis of sexual orientation. (b) Preferential treatment.-A covered entity shall not give preferential treatment to an individual on the basis of sexual orientation.

This section is actually similar to comparable sections in Title VII. Nothing in Title VII requires quotas or preferential treatment. They are only permitted in the law as a last resort remedy, as part of the broad set of remedies the Congress gave EEOC and the courts to redress wrongs under the law. That same stricture on their use would apply to claims under ENDA.
 
 
 
 
 

Section 8. Religious Exemption. In general .-(a)Except as provided in subsection B, this Act shall not apply to a religious organization. (b) For-profit activities. -This Act shall apply with respect to employment and employment opportunities that relate to any employment position that pertains solely to religious organization 's for-profit activities subject to taxation under section 511(A) of the Internal Revenue Code of 1986.

Just as religion has been given a fairly broad exemption under Title VII, it would maintain it for ENDA. That is, a religious entity, acting as a religious entity (rather than in a non-religious, for-profit capacity) would be able to discriminate on the basis of affinity orientation.
 
 
 
 
 
 
 

Section 9. Nonapplication to Members of the Armed Forces; Veterans' Preferences.

(a) Armed Forces.

(1)Employment or employment opportunities.- For purposes of this Act, the term "employment or employment opportunities" does not apply to the relationship between the United States and members of the armed forces.

(2) Armed Forces.-As used in paragraph (1), the term "armed forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

(b) Veterans ' Preferances.-This Act does not repeal or modify any federal, state, territorial, or local law creating a special right or preference for a veteran.

Despite the fact that each of its own studies has found no significant detriment in having gays continue to serve in the military, and the recommendations have been made to abolish the policies banning them, it remains something that the military wishes to do. As has always been the case under Title VII, the military has not been required to live by exactly the same rules as the civilian population. This, of course, is also related to the "gays in the military" controversy in which President Clinton threatened to lift the ban on gays in the military. When met with overwhelming opposition in Congress, he settled for a "don't ask, don't tell" policy, which has actually resulted in even more discharges for being gay or lesbian, than under the previous policy.

ENDA would not interfere with the military's policies in this area. Someone in the military who was experiencing discriminatory treatment would not be able to use ENDA as a basis for relief. The law simply would not apply to the military, as they are defined out of the term "employer" in the law.

Administration

The law is to be enforced by the Equal Employment Opportunity Commission (EEOC) and the procedures and remedies available under the Act are those available under Title VII of the Civil Rights Act of 1964.(§10) Remedies are available against the state to the same extent they are available in an action against any public or private entity other than the state.(§10) The federal government shall be liable for all remedies as a private entity, except punitive damages.(§11) Reasonable attorney fees, expert witness fees and other litigation costs and expenses shall be recoverable by the prevailing party, in the discretion of the court.(§12) Retaliation provisions are provided under the law, as are anti-coercion provisions for exercising rights under the law (§13). Notices informing employees of their rights under this law shall be posted in conformity with similar provisions under Title VII (§14), and the law would take effect 60 days after the date of enactment, but not apply to conduct occurring before the effective date.(§18)

Most Americans believe that anyone who is qualified for a job should be able to work at that job without fear of dismissal unrelated to business reasons. Time after time, gay and lesbian employees have shown themselves to be qualified for their positions. Yet their ability to keep their jobs even though they are qualified, is virtually nil. Without the help of federal assistance in the form of legislation prohibiting discrimination against them, which will not only protect the employees, but also send a message to states, this country will continue to have employees play Russian roulette in the workplace, simply by being who it is that they are and regardless of whether it impacts performance.

The proposed law provides no special rights for any group. Rather, it provides the same rights for gay and lesbian employees that others routinely enjoy. It would not mean employers would have to fill their workplace with a certain quota or given number of gay and lesbian employees. Employees would not be able to make out claims of discrimination on the basis of the disparate impact test. They could not argue that the fact that the employee's policy kept gays and lesbians out at a disproportionate rate automatically presumed a disparate impact of the policy which would act as the basis of a suit requiring that the policy be justified for business reasons. The law also provides ample exemptions for the military and religion.

What is left is simply that gays and lesbians would be able to be secure in their jobs as long as they performed them up to the employer's expectations. They would not be able to be terminated simply because the employer did not want to have gays or lesbians in the workplace. If there was activity which the gay or lesbian employee engaged in that was inappropriate, it could still be dealt with effectively. For instance, workplace dating policies, sexual harassment policies, dress codes or other such policies would still be able to be enforced. The activity would be the focus of any disciplinary or dismissal actions, not the employee's affinity orientation. That is only fair.

America has long prided itself on fairness and open opportunity. American business likes to think that it maximizes the bottom line and makes full use of its resources. To allow the arbitrary termination of gay and lesbian employees for no reason other than the fact that they are gay or lesbian does not do this. Not only does it send employees the wrong message about the worth of employees to the employer, but it also is an un-business-like-wasteful use of resources.

This law should be passed. If not now, then soon. The sooner we start protecting gay and lesbian employees from arbitrary, unfounded, baseless dismissals unrelated to their ability to perform, the sooner we will be able to send the proper message to all employees that they are valued for the contributions they make and the qualifications they bring, rather than being judged on arbitrary, irrelevant, non-work related factors. To do so would certainly be a step in the right direction toward making effective use of all of the employer's resources.
 

1. ¹ Statement of Chai Feldblum, before the Committee on Labor and Human Resources, United States Senate, on behalf of the Leadership Conference on Civil Rights in support of S. 2238, The Employment Non-Discrimination Act of 1994.
 

2. ² The term "affinity orientation" will be used throughout this paper, rather than "sexual orientation." By definition, sexual orientation focuses on the sexual component of the lives of gays, lesbians, bisexuals and the transgendered. This is inappropriate in the context of the workplace, where the private sex lives of employees is wholly irrelevant to the matter of qualifications and performance. As with any other category, in addressing workplace discrimination on the basis of affinity orientation, the emphasis should be on the qualifications, suitability and performance of the employee, rather than on extraneous, irrelevant factors such as the employee's private sex life.

3. ³ When the terms gay and lesbian are used in this paper, they also include those who have personal relationships with both genders (commonly referred to as "bisexuals") and transgenders, unless excluded by law. The power to name is an important one. The term "homosexuality" is specifically rejected by the author, as the term continues to focus attention on the traditionally more prurient and titillating aspects of the sex lives of gays and lesbians, rather than on them as whole people whose sex lives represent no more or no less a place in their lives than anyone else. Focusing attention on sex is inappropriate when considering someone's qualifications and suitability for a job.

4. ⁴ The Senate counterpart was S. 2238.

5. ⁵ Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).

6. ⁶ As defined by the proposed legislation, 3 (9), "Definitions," The term "sexual orientation" means homosexuality, bisexuality, or heterosexuality, whether such orientation is real or perceived." As such, the term does not included the transgendered, i.e., those who are discriminated against because they have or are planning to have a surgical procedure to change their gender from whatever it was at birth to the opposite gender. This is a matter that has already been rejected as gender discrimination cognizable under Title VII of the Civil Rights Act of 1964. See, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984).

7. ⁷ 42 U.S.C.A. 2000e et seq. Title VII, administered by the Equal Employment Opportunity Commission (EPOC) which has broad enforcement powers, prohibits discrimination in employment on the basis of race, color, gender, national origin or religion.

8. ⁸ See, e.g., Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989) (similarly situated gay employees treated differently may violate Title VII); DeSantis v. Pacific Telephone & Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979) (The prohibition against discrimination on the basis of sex" in Title VII does not encompass discrimination on the basis of affinity orientation; Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (1984) (employee terminated for undergoing gender-change operation is not discriminated against based on gender in violation of Title VII).

9. ⁹ See generally, "Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular Minority," 10 Women's Rights Law Reporter, 143 (1988); Chaitin and Lefcourt, "Is Gay Suspect?," 8 Lincoln L. Rev. 24 (1973); Note, "The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification," 98 Harvard L. Rev. 1285 (1985).

10.

¹⁰ Minnesota v. Clover Leaf Creamery Company, 449 U.S. 456 (1981).

11. ¹¹ See, San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973) for the criteria the Court has used to identify suspect classifications. See also, Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). Butsee, J.E.B. v. Alabama, 114 S.Ct. 1419 (1994) (The U.S. Supreme Court ruled that the equal protection clause applied to the issue of the use of peremptory striking of females from juries, extending Batson v. Kentucky, 476 U.S. 79 (1986) which held that the clause must be applied to the use of peremptory strikes on the basis of race.)

12. ¹² These have been illegitimacy and gender (Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).

13. ¹³ In Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987), a female sued the FBI on the basis of violation of the equal protection clause and its own Bureau policy for refusing to hire her as a special agent because she was a lesbiant. Holding that the FBI did not violate the constitution, and hiring was at the discretion of the FBI, the D.C. Circuit rejected adding affinity orientation to the list, citing Bowers v. Hardwick, 106 S. Ct. 2841 (Court upheld Georgia's criminal sodomy statute against a due process challenge), and Dronenburg v. Zech, 741 F.2d 1388(D.C. Cir. 1984)(D.C. Circuit rejected constitutional privacy and equal protection challenges to sailor's discharge from Navy for having sex with someone of the same gender).

14.

¹⁴ Padula v. Webster, supra, citing Mills v. Habluetzel, 456 U.S. 91 (1982).

15.

¹⁵ See, e.g., Safransky v. State Personnel Bd., 62 Wis. 464, 215 N.W.2d 379 (Sup. Ct. 1974). Cf. Morrison v. State Bd. of Ed., 1 Cal.3d 214, 461 P.2d 375 (Sup. Ct. 1969).

16.

¹⁶ See e.g, High Tech (Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990); Gayer v. Schlesinger, 490 F.2d 740 (D.C. Cir. 1973); McKeand v. Laird, 490 F.2d 1262, 9FEP 1396 (9th Cir. 1973).

17.

¹⁷ See, Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987).

18.

¹⁸ For instance, Atlanta, GA, Anchorage, AL, Phoenix & Tuscon, AZ, Hartford, New Haven, and Stamford, CT, at least 14 California jurisdictions, including San Francisco, Los Angeles, San Jose, Santa Monica, Honolulu, HA, Chicago, Il, Burlington, VT, Philadelphia, PA, Durham, Raliegh and Chapel Hill, NC, Madison, Milwaukee and Dane County, WI, Salt Lake County,UT.

19.

¹⁹ E.g., St. Louis, MO, Albany, Ithaca, NY, Watertown, Alfed and Tompkins County, NY, Portland, OR,Harrisburg, Lancaster, Philadelphia, and Pittsburgh, PA, Alexandria, VA, Austin, TX, Seattle WA, Key West and Miami Beach, FL, Champaign and Chicago, IL, Ames and Iowa City, LA, Gaithersberg, Howard County and Rockville, MD, and Detroit, MI.

20.

²⁰ McDonell Douglass Corp. v. Green, 411 U.S.792 (1973).
 

Presented at the Midwest Academy of Legal Studies in Business March 14, 1996 Chicago, IL