The U.S. Supreme Court’s monumental ruling last week that LGBTQ employees are protected by federal civil rights laws was one culmination of decades of hard-fought advocacy by the LGBTQ community.
The ruling affirms the rights of gay and transgender employees under Title VII of the Civil Rights Act of 1964, the federal employment law that bars discrimination on the basis of traits including race, sex and national origin.
As the ruling opens up new mechanisms of recourse, it may also highlight the often complex bureaucratic and legal machinery facing employees who seek to file complaints.
In other words, what do you do if you think you’ve faced discrimination because of your sexual orientation or gender identity? It’s not a matter of heading straight to the courthouse.
For one thing, claims under Title VII would have to be first filed as a “charge of discrimination” with the U.S. Equal Employment Opportunity Commission, the federal agency overseeing employment discrimination issues, or a state counterpart. This is because Title VII requires employees to show that they’ve exhausted their administrative channels for seeking remedy.
With the EEOC and state agencies, too, there are more rules that set deadlines for filing such charges — a number of states require such charges to be filed within 180 days of the discriminatory action, while others impose a 300-day deadline.
“If you face an adverse employment action — you’re fired, you’re passed over for a promotion, you find out your pay is less than somebody else’s — and you believe that it has to do with your sexual orientation or gender identity, you have a 180, or up to 300 days, to file that charge of discrimination,” said Kalpana Kotagal, a partner at Cohen Milstein Sellers & Toll PLLC and a member of the firm’s civil rights and employment practice group, who represents retail employees.
“And 180 days, you know, it’s not very much time. It can go by before you realize, and all of a sudden, it settles on you that you’ve faced discrimination and you look up your state, and it’s like, ‘Oh no, I missed my window.’”
Before the Supreme Court’s ruling, the practical hurdles within the recourse infrastructure, particularly those imposed by state and local laws, were even more significant.
Until this point, it was largely up to state and local jurisdictions to extend civil rights laws to LGBTQ employees. Only some 22 states and Washington, D.C., had barred discrimination based on sexual orientation and gender identity, while a few other states offered more limited version of such protections, according to the Human Rights Campaign, an LGBTQ civil rights advocacy group.
Some local agencies have been early adopters on this front, including in New York, where detailed protections for LGBTQ residents have been built up in recent decades.
The New York City Commission on Human Rights, which enforces the city’s civil rights laws, has offered protections since 1986 against discrimination based on sexual orientation, and since 2002 on discrimination based on gender identity.
The agency has since sought to reinforce and update those protections by issuing enforcement guidance explaining how it works in practice. In 2015, when bills were being introduced around the country to prevent transgender people from using bathrooms that matched their gender identity, the agency released detailed guidance in a document that explained the city’s legal protections against discrimination on the basis of gender identity, defined terminology, and expanded on how they worked in various contexts, including housing, employment and public accommodations. That legal enforcement guidance is now part of the NYC Commission on Human Rights’ formal rules.
Carmelyn Malalis, chair and commissioner of the agency, said the agency’s approach speaks to a mission dating back to its origins in the Forties, when then-Mayor Fiorello LaGuardia established a committee amid race riots in the city over police brutality.
“We are an agency that was created out of the spirit of change and uprising,” Malalis said. “In line with that ethos, the commission has always historically looked to ways that it can be helping to protect and celebrate different communities, and people in New York City that call this city home.”
In New York City, too, channels for recourse follow an intricate system. The city’s human rights commission has the power to initiate investigations into companies on discrimination issues. Such investigations are part of the administrative actions that the agency can take through its law enforcement bureau.
If its investigators find probable cause for discrimination, the case can then get referred for a trial before an administrative law judge at the Office of Administrative Trials and Hearings, which is another city agency. After a full trial on liability, damages and penalties, the administrative law judge would send their report and recommendations back to the city commission, which would then adjudicate the issue.
The discussion has also raised periodic reminders about the precariousness of employment for most workers in America, where employment is usually “at-will.” That means it can be terminated at any time, unless there’s a collective bargaining agreement between the company and its employees, or other governing documents stating to the contrary. While Title VII bars companies from using the at-will framework to fire employees simply for being a member of a protected class, they could in practice use other pretexts to do so, employment attorneys said.
But still, Title VII establishes a bar for employers, when firing someone in a protected class, to consider whether it could be viewed as discriminatory, said Randi May, partner at Hoguet Newman Regal & Kenney LLP, who represents companies on labor issues.
“Employers, before they fire somebody or they take any other employment action against somebody who is a member of a protected class, they do pause, and take a look at it, and wonder…whether or not their actions could be seen as discriminatory, or if it’s pretextual,” she said. “They take better care in establishing a paper trail and the like, and I think that the same will now apply for members of the LGBTQ community.”
Malalis of the city’s human rights commission said that the Supreme Court’s ruling at least puts LGBTQ employees on equal footing with other employees who belong to protected classes under Title VII.
“The import of this decision is that it puts transgender people, it puts lesbian, gay, bisexual people in the same position as all of these other litigants,” said Malalis.
“Before this decision…LGBTQ people couldn’t even get to the door, we could not even avail of this type of protection,” she said. “Now we’re at least at the door, standing at the door of the courthouse, with everybody else.”