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December 3, 2020

Rethinking Discrimination

Does discrimination on the basis of sex include discrimination on the basis of sexual orientation or gender identity? For several years now, federal agencies and courts have been split on the issue. Last year, the Supreme Court agreed to hear three cases to settle the matter. And now the court has finally ruled: Discrimination on the basis of sex includes sexual orientation and gender identity.

There is much misunderstanding about discrimination — even among conservatives and libertarians. But first, to understand the court’s decision, we must go back to 1964.

The Civil Rights Act

The Civil Rights Act of 1964 was signed into law by President Lyndon B. Johnson on July 2, 1964 (shown above). It claimed to be:

An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

The Civil Rights Act was divided into 11 titles. Relevant to the subject of discrimination are Titles II (Injunctive relief against discrimination in places of public accommodation) and VII (Equal employment opportunity).

Title II prohibits discrimination in public accommodations. According to section 201:

(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

A “public accomodation” under the law could be an “inn, hotel, motel, or other establishment which provides lodging to transient guests” or “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises,”  including “any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.”

However, generally, “The provisions of this title shall not apply to a private club or other establishment not in fact open to the public.”

Title VII prohibits discrimination in employment. According to section 703:

(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

Title VII also established the Equal Employment Opportunity Commission (EEOC) to enforce anti-discrimination laws relating to employment.

The Civil Rights Act of 1964 has been supplemented over the years by various laws designed to prohibit even more forms of discrimination in employment. According to the EEOC, the Equal Pay Act of 1963 prohibits discrimination on the basis of sex in compensation for substantially similar work under similar conditions; the Age Discrimination in Employment Act of 1967 “protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment”; the Pregnancy Discrimination Act of 1978 made it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to these things; the Americans with Disabilities Act of 1990 protects “qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment”; and the Genetic Information Nondiscrimination Act of 2008 “protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.” These laws also “prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice.”

Sexual Orientation and Gender Identity

For years now Democrats have been trying to redefine the prohibition in the Civil Rights Act against discrimination on the basis of “sex” to include discrimination on the basis of “sexual orientation” or “gender identity.” In 2013, the Employment Non-Discrimination Act, or ENDA (S.815), passed the Senate with the help of 10 Republicans. It was designed “to prohibit employment discrimination on the basis of sexual orientation or gender identity.” The bill was never voted on in the House. In 2019, the Equality Act (H.R.5) passed the House with the help of eight Republicans. It is a bill “to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.” It would amend the Civil Rights Act of 1964 “to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation” and expand the Civil Rights Act’s categories of public accommodations. The Senate has sat on the bill for over a year.

The EEOC has itself, without any legislation passed by Congress and duly signed into law by the president, expanded the definition of sex discrimination. As it states on its website, the EEOC is the federal agency “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.”

Also relevant here is the Civil Rights Act of 1968. Title VIII instituted the Fair Housing Act (FHA). It originally prohibited discriminatory acts regarding the sale, rental, and financing of housing based on race, color, religion, and national origin, but has been amended to include discrimination based on sex (1974) and disability or familial status (1988). Like the EEOC, the Office of Fair Housing and Equal Opportunity (FHEO) in the Department of Housing and Urban Development (HUD) has unofficially expanded the definition of sex to include sexual orientation and gender identity. “Persons who identify as LGBTQ who believe they have experienced housing discrimination may be able to pursue a claim” with the federal government under the Fair Housing Act or HUD’s Equal Access Rule. HUD is “committed to investigating violations of the Fair Housing Act against all individuals regardless of their sexual orientation or gender identity.” And the HUD rule “requires equal access to HUD programs without regard to a person’s actual or perceived sexual orientation, gender identity, or marital status.”

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