As hundreds of thousands of LGBT Americans and their allies are taking to the streets to celebrate during Pride month, a case out of Texas highlights the employment discrimination hurdles the community still needs to clear.
Stacy Bailey is a former teacher at Charlotte Anderson Elementary School in Arlington, Texas. She is suing the Mansfield Independent School District (MISD) for suspending her for discussing her sexual orientation in her classroom.
The 31-year-old art teacher lives in one of 28 states where it’s legal to suspend or fire someone because of his or her sexual identity.
The school district released a statement saying they are and have always been “an inclusive, supportive environment for LGBT staff for decades.” Action was taken against Bailey, they say, because allegedly “her actions in the classroom changed.”
Bailey was removed from the classroom after a parent complained that she showed a picture of her and her then-girlfriend and now-wife to her students.
Whether or not the school district acted in a discriminatory manner is up for a jury to decide. Regardless of the jury's decision, MISD is perfectly within their legal right to take action against someone because their sexual identity. This is because of ambiguity in Title VII of the Civil Rights Act of 1964.
What is Title VII of the Civil Rights Act of 1964?
The statue says, “It shall be an unlawful employment practice for an employer… 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.”
“The questions is whether ‘sex’ covers sexual orientation and gender identity issues,” attorney Sandra Mayerson told Fox News.
This question has plagued the court system for many years but lately some courts have reached firm decisions on the matter. Since April 2017, the 7th and 2nd U.S. Circuit Court of Appeals have decided that Title VII does extend to sexual orientation and gender identity by way of the sexual stereotype theory ruled on by the Supreme Court in Price Waterhouse v Hopkins.
This case ruled that Title VII extends to sexual stereotypes; meaning a person cannot be punished by an employer because they don’t act the way they their sex “should” act. This, they argued, is a form of discrimination based on sex.
The 7th Circuit used this sexual stereotyping theory to argue homosexuals cannot be punished by an employer because they don’t behave the way they “should,” that is they don’t have romantic relationships with people of the opposite sex.
With regard to Bailey’s case, a similar argument can be made in her defense, Mayerson said.
“Stacy is discriminated against because of sex because she showed a picture of her wife and if a man had shown a picture of his wife he would not have been suspended. But a woman showing a picture of her wife was suspended, and therefore she was suspended because of her sex,” Mayerson explained.
What’s the scope of ‘sex?’
The 11th and 6th Circuit courts ruled the opposite; that “sex” does not extend to orientation.
“Usually when there’s a split in the circuits, that’s when a case becomes ripe for a Supreme Court ruling,” Mayerson said. However, the high court has refused to hear a case regarding the issue. Mayerson posits the reason is because there are justices on both sides of the issue and neither side believes they have the votes to render a decision they agree with.
President Trump’s Department of Justice has weighed in on the hotly debated issue. In July 2017, the DOJ filed an amicus brief at the 2nd Circuit Court arguing Title VII does not extend to sexual orientation.
"The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect," the brief argues.
This Justice Department also argued, “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”
What does the ambiguity of Title VII mean?
Without a federal statute interpretation coming from the Supreme Court or a law passed down by Congress, the states are left to their own devices.
Since the 7th and 2nd Circuit courts have decided that Title VII extends to those within the LGBT community, the six statues under their jurisdiction – Illinois, Indiana and Wisconsin; and Connecticut, New York and Vermont, respectively – have a law to follow. Sixteen other states have taken legislative action to protect LGBT people from employment discrimination.
This means the remaining 28 states are left at the mercy of local state and municipality laws as well as minor court decisions.