Despite being an evolved democracy, a model for most countries struggling to meet even the basic standard of human rights, the US still grapples with the question of discrimination. Discrimination along the gender line is inherently a social issue, but because of contributions from policymakers, feminist campaigns, among other things that have heightened pressure to relook the problem and expand the interpretation of discrimination prohibiting laws to include modern concepts such as orientation. Sex discrimination is an essential concern in equality discourses since when perpetuated in areas such as workplace environment, it marginalizes certain genders and fosters social inequality, reducing the odds of attaining the desired level of social and economic equity. It is predominantly a women’s issue and explains largely the genesis of systemic prejudices in workplaces that forms the basis gender inequality, but LGBT people raise legal issues, and since sex is a protected quality, sexual orientation is an undeniable corollary.
Sex Discrimination Covers Sexual Orientation
Sex/ gender discrimination is the act of tendering differentiated treatment based on an individual’s orientation, either as a male or female. It is unqualified discrimination, and an individual who is fired, denied employment, harassed or given lesser wages because of gender orientation may have been a victim of discrimination contrary to the law.
The prevalence of specific local laws expressly prohibiting sexual discrimination and orientation is indicative of a widely recognized norm (Hillman 31). In terms of Kodama, laws do not just normalize an emerging culture but are a reflection of the widely practiced socially accepted norms. Executive Order 11246 expressly prohibits contractors doing business with the federal government from discriminating on several grounds for which sex is a part. The U.S Department of Labor is publishing new rules on sex discrimination to support the interpretation of order 11246 and will confer explicit protections designed to reduce sex discrimination in workplaces as well as align the same with current laws. Additionally, the rule reinforces the provisions of Section 503 of the Rehabilitation Act of 1973 and Vietnam Era Veterans’ Readjustment Assistance Act of 1974 that prohibit discrimination against gender. These legal changes show the value attached to protection from sexual discrimination, which then raises context, the term sex right denotes orientation.
In terms of Hillman discriminating based on LGBT status is essentially a form of sex stereotyping, which is illegal (4). Such kind of stereotyping emanates from socially constructed expectations of stereotypical female and male. In recognizing the existing legal conundrum for failure to expressly include LGBT status, Equal Employment Opportunity Commission has expanded the Title VII prohibitions to include sexual orientation and gender identity (Totenberg). The effect of these guidelines is to protect individuals who do not conform to the socially constructed notion of male and female from discrimination. Under the EEOC guidelines, one cannot be discriminated merely because he/she performed gender transition or because he is male planning to marry a fellow man.
Equal Pay Act of 1963 enacted only a few months before Title VIII of civil rights also prohibits discrimination based on genders. Together, these laws can be used to decipher the socially constructed status of the norm during the period of enacted Title. For its clarity, EPA can be perceived as indicating there was growing recognition and resentment of sex discrimination. A different interpretation, defying the fact that Title VII sought, in part though to reduce sex discrimination, would mark it as a retrogressive, insensitive to the social needs of the society at the time and would defy the natural cause of events that law is a reflection of deeply held social values (Lee 423). Typically, any law that misses such qualities is challenging to implement and likely face innumerable amendments. None of these have ever been the plight of the Act. Based on these facts, even without explicit prohibition, the authors of Title VII must have contemplated prohibiting sexual discrimination and all it entails. Many decades after the passage there have been many cultural shifts. The concept of LGBT rights is a clear indicator that the world is prepared to recognize and protect the discrimination of LGBT people (Totenberg). Thus, the delay in updating sexual discrimination law does not imply that the law did not anticipate expansion. Any law that is inconsistent with existing societal values is bad law, which means that a different interpretation denotes Title VII for its failure to protect societal values has become antiquated.
Other functions of sex, such as pregnancy, often fronted by those who perceive them as qualifying for protection, have received legal protection. In terms of the Pregnancy Discrimination Act that substantially amends Title VII clarifies that perception on the grounds of pregnancy amounts to a form of discrimination. Like is expected of the developments in a capitalistic society, some individuals consider that the debilitating effect of pregnancy that renders one an unsuitable for specific tasks suffices to justify differential treatment. However, the law on pregnancy recognizes that possibility but then identifies that it is only a temporary disability entitled to full benefits as other employees suffering from temporary incapacities (Tyson 619). Like pregnancy, sexual orientation is a function of sex thus, is bound to be automatically protected. This was the argument advanced in the Altitude Express, Inc. v. Zarda. Arguably, it would be illogical to protect sex and fail to protect any of its functionalities.
Literal and Contextual Application of the Law
Sexual orientation is a relatively new development and certainly not contemplated during the formulation of the provisions of Title VII rights. Although the law does not define what amount to sex, a quick evaluation of the context can reveal that legislators were limiting themselves to a narrow construction of sex to imply “male” and “woman.” Considering the mutuality before law and morality, even fronted with a reality of future divergent sex orientation, it is possible legislators would have stuck to narrow interpretation for issues for moral reasons (Hillman 11). Arguably, an evolving norm has to attain a certain standard before reaching legal recognition. While accepting that the slackness of legal systems prevents the law from keeping with the pace of morality, a question that should be considered is whether sexual orientation has become an unequivocal norm among the contemporaries. The usual controversies that feature during discourses one LGBT right signal a pattern in development certainly not ripe for legal recognition (Totenberg). As a result, the question whether sexual orientation amounts to a protected quality should be handled on a case by case basis figuring all the contextual aspects.
Sex orientation is a function of sex. Since sex is a protected quality under the Title VII, its legislators may have anticipated protection of all sexual features for which orientation is part. Legal developments in the protection of other sexual functions such as pregnancy imply that the same argument could be raised in favor of sexual orientation. Besides, the definition of term sex may have meant a different thing at the time of enactment, but cultural shifts in the modern world present new realities that should be factored interpreting the law. Concepts such as LGBT rights show that the time is ripe for a fresh interpretation of Title VII.
Hillman, Regina Lambert. “Title VII Discrimination Protections & LGBT Employees: The
Need for Consistency, Certainty & Equality Post-Obergefell.” Belmont L. Rev. 6 (2018): 1-40.
Lee, Jason. “Lost in Transition: The Challenges of Remedying Transgender Employment Discrimination Under Title VII.” Harv. JL & Gender 35 (2012): 423.
Totenberg, Nina. Showdown Over LGBTQ Employment Rights Hits Supreme Court. NPR News. www.npr.org/2019/10/08/766386729/showdown-over-lgbtq-employment-rights-hits-supreme-court. Accessed, 8 March, 2020.
Tyson, Christopher J., “Title VII of the Civil Rights Act of 1964” (2005). Journal Articles. 188. https://digitalcommons.law.lsu.edu/faculty_scholarship/188. Accessed, 8 March, 2020.