Giving credit where credit is due: this writeup was the result of a group effort between this noder (J. Kotecki) and two non-noders (C. Hiltrop and K. Livernois). It has been posted here with the expressed permission of all parties.

Abstract
This writeup analyzes the Civil Rights Act of 1964, placing particular emphasis on Title VII and the fact that it excludes members of minority groups that have to do with sexual orientation. The CRA prohibits discrimination in public facilities, in government, and in employment. The CRA encourages the desegregation of public schools, authorizes the U.S. Attorney General to file suits to force desegregation, and authorizes withdrawal of federal funds from programs that practice discrimination. Title VII outlaws discrimination in employment on the basis of race, national origin, sex or religion. It also prohibits retaliation against employees who oppose such unlawful discrimination. However, those who experience employment discrimination based on their sexual orientation have no recourse under current federal law.




Discrimination Based on Sexual Orientation
As Manifested in Title VII of the Civil Rights Act of 1964

In 1963, a Civil Rights bill was brought before Congress for the first time since 1870 (Simkin, 1997a). Its chief purpose was to protect black men from discrimination, a term which in this context refers to “treating one person unfairly over another according to factors unrelated to their ability or potential” (Legal Definitions, n.d.). In a speech televised live on June 11, 1963, President John F. Kennedy pointed out:

The Negro baby born in America today, regardless of the section of the nation in which he was born, has about one-half as much chance of completing high school as a white baby born in the same place on the same day; one third as much chance of completing college; one third as much chance of becoming a professional man; twice as much chance of becoming unemployed; about one-seventh as much chance of earning $10,000 a year; a life expectancy which is seven years shorter; and the prospects of earning only half as much.

(Simkin, 1997b)
Congress was still debating Kennedy’s Civil Rights bill when he was assassinated in November of that year. The new president, Lyndon Baines Johnson, took up the cause. The final House vote on the Senate version of the bill was 289 yeas and 126 nays, and President Lyndon Johnson signed the bill into law on July 3, 1964 (Wikipedia, 2004b).

The Civil Rights Act of 1964 (which will be referred to throughout this paper as the CRA) purported to prohibit discrimination in public facilities, in government, and in employment, but it had several loopholes. Title I barred unequal application of voter registration requirements—-but did not abolish literacy tests; Title II outlawed discrimination in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce-—but exempted private clubs without defining “private”; Title III encouraged the desegregation of public schools, and authorized the US Attorney General to file suits to force desegregation—-but did not authorize busing as a means to overcome segregation based on residence; Title IV authorized withdrawal of federal funds from programs that practice discrimination-—but did not require said withdrawal of funds; and Title VII, which will be the focus of this writeup, outlaws discrimination in employment in any business on the basis of race, national origin, sex or religion, and also prohibits retaliation against employees who oppose such unlawful discrimination—-but did not protect against employment discrimination on the basis of sexual orientation or gender identity (Wikipedia, 2004b). These loopholes are mute evidence of the U.S.’s conflicted attitude regarding the proper way for its minority populations—groups such as African Americans, Jews, Asian Americans, European immigrants, Hispanic Americans, and Native Americans/American Indians-—and its women to be treated by white males. This internal conflict has been present since the nation’s inception, and the struggle for legislative equality continues today in the current attempt to pass HR 3285 and S. 1705, identical bills titled “the Employment Non-Discrimination Act(Library of Congress, 2004). This act would extend the CRA’s Title VII protection to minority sexual orientations (Library of Congress).

Signed by representatives of the Thirteen Colonies in 1776, the Declaration of Independence was the very first legislative act of the nascent U.S., and it states that all men are created equal (Wikipedia, 2004f). However it was not until December of 1865, after the American Civil War had ended, that twenty-seven out of thirty-six states ratified the Thirteenth Constitutional Amendment in order to outlaw slavery, the most obvious form of legalized discrimination (Wikipedia, 2004e). Incredibly, the state of Mississippi did not ratify the Thirteenth Amendment until 1995 (Wikipedia)! The Reconstruction period of U.S. history saw two significant advances in civil rights legislation: The Civil Rights Act of 1866, which states that “all persons shall have the same rights…to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws,” and the Fourteenth Constitutional Amendment, which states that “All persons born or naturalized in the US…are citizens…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws” (G. Todd Withy Law Offices, 2001, par. 3-4). Despite the existence of this federal legislation, the first of the state-level “Jim Crow” laws, so-called due to a minstrel’s parody of African American culture and designed to enforce and promote racial discrimination, was passed in 1888 in Louisiana, declaring that African Americans could not be seated with whites on railway cars (Barusch, 2002). The U.S. Supreme Court upheld this legislation with its decision in the case of Plessy vs. Ferguson, declaring that segregated facilities could be “separate but equal(Barusch, p. 313). Jim Crow laws soon became comprehensive, covering almost all aspects of life: barbershops, baseball (both professional and amateur!), bathing, billiard and pool rooms, boating, burial, busing, care for the blind, child custody, circuses, cohabitation, education, fishing, hospital entrances, housing, juvenile delinquent facilities, libraries, lunch counters, marriage, mental hospitals, militias, mining, nursing, parks, prison facilities, railroads, reform schools, restaurants, the sale of wine and beer, theaters, telephone booths, textbooks, toilet facilities, teaching, transportation, all were racially segregated by state legislation (Martin Luther King Jr. National Historic Site, 1998). It was especially important from the perspective of those who wanted to keep the races separate that educational facilities were segregated, and that interracial marriages were banned; these two types of legislation were passed in state after state.

With progress toward racial equality stymied by Jim Crow legislation, the next significant advance in civil rights was made on the basis of gender. The Nineteenth Amendment to the U.S. Constitution, ratified in 1920, states that “the rights of citizens…to vote shall not be denied or abridged…on account of sex” (G. Todd Withy Law Offices, 2001). Another advance towards gender equity came in 1963, when the Equal Pay Act prohibited sex-based pay differentials in jobs (G. Todd Withy Law Offices), but a little less than a decade before the Equal Pay Act became law, the Supreme Court made progress on the racial front by overturning Plessy vs. Ferguson in its now-famous 1954 ruling on Brown vs. Topeka Board of Education (Tice & Perkins, 2002). In this ruling, the Supreme Court admitted that racially-segregated facilities were inherently unequal, and announced that school systems could no longer be separated on the basis of race because the message to black children would be that the whites did not want them in their schools (Tice & Perkins). The Court understood that isolation would generate feelings of inferiority. Unfortunately, this ruling, which reversed the tide of Jim Crow, resulted in an angry backlash from white supremacist groups such as the Ku Klux Klan. It also proved difficult for elected police officials and justice officials to enforce the laws. Ten years after Brown v. Topeka Board of Education, only 2% of the segregated schools had been integrated; fifteen years after the ruling, 80% of black students were still in separate facilities (Tice & Perkins).

The Ku Klux Klan was not the only group angered by civil rights legislation. Shortly after the Equal Pay Act came the CRA. However, certain leaders of infuriated groups of African Americans (finally organized after decades of Jim Crow), felt that white people had no intention of treating blacks as equals, and did not believe that the CRA went far enough in promoting their rights (Tice & Perkins, 2002). Unlike the respected force of nature named Martin Luther King, Jr., these leaders denounced non-violent means of protesting. Stokely Carmichael was one of those leaders; he coined the phrase “black power”. Malcolm X is arguably the most famous of the civil rights leaders who advocated violence. X’s followers called him “Our Black Shining Prince”, and eagerly joined his Black Panther 10-point party program (Tice & Perkins).

When Title VII of the CRA is analyzed from an economic perspective, it becomes clear that it was intended to redistribute social benefits and increase opportunity for certain segments of the U.S. population. Therefore, its basis of allocation is categorical in nature: members of racial, ethnic, and religious minorities, as well as women, as long as they were citizens, could now theoretically reap the benefits of non-discrimination previously enjoyed by majority groups and males. To use a metaphor, the CRA does not add to the pie, it changes the size of the slices. The groups that benefit from this act do not receive a direct financial provision, and their benefits do not come in either in-cash or in-kind forms. The Equal Employment Opportunity Commission (EEOC), established in Title VII, interprets and enforces civil rights legislation at a federal level (Wikipedia, 2004b). Additional civil rights legislation created at the state level is enforced by state agencies. For example, the Illinois Department of Human Rights administers the Illinois Human Rights Act, which prohibits discrimination because of race, national origin, sex, religion, ancestry, citizenship status (with regard to employment), age 40 and over, marital status, physical or mental handicap, military service or unfavorable military discharge (Illinois Department of Human Rights, 2003). Note that sexual orientation minority groups are not protected against discrimination in the state of Illinois at this time. Federal taxes support the EEOC, and state taxes support agencies such as the IDHR. The federal government’s 2004 budget proposal included an allotment of $335 million for the EEOC (Gruber, 2003, par. 12). The State of Illinois' fiscal year 2005 appropriations, by major purpose percentage of total funds, allotted the IDHR 17.2% of a $43.5 billion budget, which was $7.5 billion dollars (State of Illinois, n.d.).

In addition to the budgets of the EEOC and state agencies, another cost incurred by the CRA is the funds that have been spent by the business organizations in order to ensure they comply with Title VII. Since it would cost the employer approximately $80,000 to handle an EEOC complaint up to the point of but not including courtroom/settlement costs (Penn-Nabrit, 2003), it is usually cost-effective for the company to establish a policy that complies with Title VII and to train its employees appropriately. Training, specifically in the form of diversity training and harassment-free prevention training, are provided to employees at a cost to the employer. This cost can be as little as $20-30, depending on what type of training program is used (PrimeLearning.com, 2004). While civil rights legislation comes with a clear price tag, discrimination incurs more subtle costs, such as when companies lose productivity from employees who feel they are discriminated against (“Please Explain”, n.d.). “Staff who believe or perceive they are being harassed or discriminated against in the workplace become dissatisfied and unhappy, which may ultimately lead to resignations and/or formal complaints” (“Please Explain”, par. 3).

The phrase ‘affirmative action’ was coined by President Kennedy’s administration, “in a ruling directing firms with federal contracts to take ‘positive steps’ to have a racially representative workforce” (Tice & Perkins, 2002, p. 237), but was not clearly defined in that ruling. In the decades that have passed since that ruling, affirmative action, also called “positive discrimination” or “employment equity”, has come to refer to “conciously choosing people who have traditionally been discriminated against. This consists of preferential access to education, employment, health care, or social welfare(Wikipedia, 2004a). Affirmative action is an extremely controversial topic. Its proponents argue that affirmative action is the best way to correct a history of discrimination against minority groups and women, and that it redresses an otherwise unfair balance of historical wrongs; its opponents believe that affirmative action denies opportunities to qualified individuals who happen to have been born male or who are part of majority groups (Wikipedia). In addition to this ‘reverse discrimination’ argument, some claim that while affirmative action may have been needed in the 1960s, U.S. society has progressed to the point that it is no longer necessary, and many say that affirmative action sends a message to minorities that they are not capable enough to be considered on their own merits (Wikipedia). It is the EEOC that currently enforces U.S. legislation regarding affirmative action, including the establishing of quotas (Tice & Perkins, 2002). Quotas have consistently been the most controversial results of civil rights legislation:

The use of quotas means that a certain percentage of all new hires must be a member of some group, no matter how unqualified. Quotas were sometimes ordered by courts in the 1970's and 80's to force uncooperative institutions in integrate. However, outside of such court orders, quotas are usually considered illegal discrimination.

The real debate these days is over a form of affirmative action called “racial preferences.” This is when a school or business gives a preference to a certain minority group by giving them extra points in a scoring system, requiring a lower score for minorities, or some other mechanism.

Critics of racial preferences often argue that there is no practical difference between quotas and preferences, since all a business has to do is adjust the amount of preference given to ensure the exact percentage of minority acceptances that it wants. However, the Supreme Court held just this term that such racial preferences are permissible in some cases, even though quotas are not.

(Troy, 2003, par. 5-7)

While it is the EEOC’s job to enforce U.S. policy regarding affirmative action, the EEOC is only one small part of the divisions of the federal government whose business concerns civil rights. A perhaps unexpected result of the U.S. government’s system of checks and balances is that its judicial branch, represented at the federal level by the Supreme Court, plays a crucial role in interpreting the extent of civil rights. The material that has already been presented in this writeup regarding Plessy v. Ferguson and Brown vs. Topeka Board of Education shows with striking clarity how a single Supreme Court ruling can change the very nature of a right throughout the country. The Supreme Court began mandating and supervising school desegregation programs after the passage of the CRA, and remain crucial in performing this role (Holladay, 2004). It is fortunate for U.S. citizens that, in addition to the EEOC and the Supreme Court, non-government agencies also ensure the administration of civil rights legislation such as the CRA. There are many special interest groups that provide a variety of services to ensure that citizens enjoy the benefits of these laws. Examples of such special interest groups include: the National Association for the Advancement of Colored People, the National Organization for Women, the Society for Human Resource Management, and the American Civil Liberties Union (Auburn University, 2003).

U.S. civil rights legislation has been revised several times in the years that have passed since the landmark CRA. In 1967, the Age Discrimination Employment Act (ADEA) was passed, prohibiting discrimination against 40-65 year-olds, and in 1986 it was amended (G. Todd Withy Law Offices, 2001). Title I of the 1990 Americans with Disabilities Act (ADA) prohibits discrimination by employers on the basis of disability. The Civil Rights Act of 1991 added provisions to Title VII of the CRA in order to prohibit sexual harassment (G. Todd Withy Law Offices). These two acts were intended to show the nation’s commitment to protecting individuals who are not white males under the age of 40. However, gays and lesbians remain unprotected, and discrimination against categories of U.S. citizens that are theoretically protected by the CRA, such as racial and religious minorities, immigrants, and women, continues. Activists who currently lobby for gender equity point to Report 972 of the U.S. Department of Labor’s Bureau of Labor Statistics, released in September of 2003, which states that despite the existence of the Equal Pay Act, women still only earn 79 cents for every dollar a man earns. The easiest way to test for discriminatory practices is to use paired testing, in which “two individuals are matched for all relevant characteristics other than the one that is expected to lead to discrimination. The testers apply for a job, an apartment or some other good and the outcomes and treatment they receive are closely monitored” (Fix & Turner, 1999, par. 5). Even without the use of paired testing, statistics collected in 1999 indicated that the hourly earnings of black men were 65 cents on the dollar for white men’s earnings; black men paid $1000 more for the same new car as the one bought by a white man; deep disparities persisted in the receipt of state and local employment contracts for all minority groups; and schools and neighborhoods were becoming more, not less, segregated (Fix & Turner, par. 2). Further proof of the continued existence of discrimination in the workplace comes from the reports of the EEOC: 364 suits filed in 2002, of which 332 were determined to have merit and 247 were based on workplace discrimination (U.S. Equal Employment Opportunity Commission, 2004, par. 2).

Given that so many members of groups that are supposed to be protected by the CRA experience workplace discrimination, it is not surprising that gays and lesbians, who have no protection under Title VII, experience ferocious discrimination at their places of employment:

54 percent of respondents in a 2001 statewide survey of lesbian, gay and bisexual New Yorkers had experienced discrimination in employment, housing, or public accommodation since 1996, with eight percent reporting that they were fired specifically because of their sexual orientation; 27 percent also reported being called names such as “faggot” and “dyke” in the workplace…

33 percent of a national sample of members of the National Gay and Lesbian Task Force, the National Latino Lesbian, Gay, Bisexual and Transgender Organization (LLEGO) and the National Black Lesbian and Gay Leadership Forum reported employment discrimination.

(National Gay and Lesbian Task Force, 2004, par. 5-7)

Certain areas of the U.S. suffer more of the negative consequences of discrimination against gays and lesbians than other areas do. While same-sex couples were reported in 99% of U.S. counties in 2000, the distribution of gay and lesbian families is not uniform (Gates & Ost, 2004). Currently, the ten states with the most same-sex couple households are California, New York, Texas, Florida, Illinois, Pennsylvania, Georgia, Ohio, Massachusetts and New Jersey (Gates & Ost). Research findings regarding what percentage of the population is made up by minority sexual orientations varies with differing methodologies and selection criteria. Most of these statistical findings are in the range of two and eight tenths to nine percent of males, and one to five percent of females for the United States; the figure can be as high as twelve percent for some large cities and as low as one percent for rural areas (Wikipedia, 2004d). Almost all studies have found that homosexual males occur roughly at twice the rate of homosexual females (Varnell, 2003). Currently, the question of whether or not homosexuality is a choice remains a hot topic for the U.S.’s society. Some believe that homosexuals choose to be the way they are so they are not entitled to have their civil rights protected by legislation (Sullivan, n.d.). It seems worth noting at this point that a person’s religion is also a choice, and religion was included as an invalid basis for discrimination in the CRA.

Changes in the way gays and lesbians have been portrayed over time has helped to sway public opinion on homosexuality. Today’s teens have “had a dramatically different exposure to the gay, lesbian, bisexual, and questioning (GLBQ) community than any other, largely due to the emergence of widespread media representation over the past decade” (Bialek, 2004, par. 1). This exposure has put a face to the issue of homosexuality, and incremental change in attitudes towards homosexuality has been the result. Even a strongly leftist organization such as the American Civil Liberties Union (ACLU) felt comfortable with turning its back on gays and lesbians during the 1950’s, but after several United States Supreme Court rulings affirmed privacy in marriage, the ACLU’s National Board of Directors changed its policy (Tice & Perkins, 2002). Now many companies have come to recognize that there are considerable benefits in adopting employment policies based on principles of equality, including the equal treatment of members of minority sexual orientation groups. Tackling discrimination helps to attract, motivate and retain employees. It helps employers make the best use of skills and experience and can lead to a more diverse workforce, new ideas, access to wider markets and a better image (EEO Trust, n.d.). Also, as was touched on earlier, discriminating against employees increases a variety of costs: loss of morale, increased absenteeism, loss of productivity, costs of legal actions and settlements, vicarious liability, high staff turnover, lack of loyalty, poor individual performance, mistrust and division, loss of company reputation, bad publicity, and increased workplace health and safety issues can all result from discrimination (Education Queensland, n.d.). Providing protection to lesbians and gays decreases a company’s potential for increased unemployment costs and saves substantial turnover costs. The average cost for employee turnover, which includes recruitment costs, training costs, lost productivity costs and new hire costs, based on a salary of $50,00, is $75,000 (Bliss, n.d., par. 4).

Many individuals and organizations publicly support gay and lesbian rights. In 1924, the Society for Human Rights in Chicago became the country’s first known gay rights organization (Infoplease, 2004). In 195l, Harry Hay founded the Mattachine Society, the first national gay rights organization, and in 1956, a national lesbian organization called the Daughters of Bilitis was founded (Infoplease). Lambda Legal is a national organization that currently works to achieve “full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work” (Lambda Legal, 2004, par. 1). Founded in 1978, Gay and Lesbian Advocates and Defenders (GLAD) is New England’s leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression, which provides litigation, advocacy, and educational work (Williams, n.d.). Other organizations that actively pursue civil rights for gays and lesbians include the Gay Activists Alliance and the National Gay and Lesbian Task Force (Haider-Markel, 2004).

The work of these individuals and organizations has consistently been countered by other individuals and other organizations that passionately oppose tolerance of homosexual lifestyles. The Moral Majority, a group of conservative Christian political action committees, dissolved in 1989, but its successor, the Christian Coalition, remains active and remains vociferous in its disapproval of gays and lesbians (Wikipedia, 2004c). The U.S. military began to practice discrimination against homosexuals in 1778 with the dismissal of Lt. Gotthold Frederick Enslin, and in the mid-1990s entered the mire of President Willam Jefferson Clinton’s ‘don’t ask, don’t tell, don’t pursue’ policy, from which it has yet to emerge (GLINN, 2005). The Boy Scouts of America have consistently banned open, avowed homosexuals from adult leadership positions within the organization, stating that homosexuality is inconsistent with their values (Barnett, n.d.).

There are several pending federal bills and state bills focusing on preventing discrimination based on sexual orientation. One of these bills is HR 3285, the Employment Non-Discrimination Act (ENDA), designed to prohibit discrimination on the basis of sexual orientation and therefore ensure fairness in the workplace for Americans who are currently denied equal protection under the law (Library of Congress, 2004). ENDA does not create ‘special rights’; it explicitly prohibits awarding preferential treatment to or creating quotas for gays and lesbians, exempts small businesses, religious organizations and the military from its requirements, and remains silent on the question of whether employers should offer health insurance benefits to the same-sex partners of employees (Library of Congress). ENDA has received widespread bipartisan support, which may only be possible because it does not deal with the question of gender identity, a glaring oversight in the eyes of progressive groups such as the Human Rights Campaign (Brune, 2004). The last major action taken towards ENDA occurred on the 30th of January of this year, when it was referred to a subcommittee on employer/employee relations (Library of Congress). The lack of federal law protecting the interests of minority sexual orientation groups could be mitigated by legislation at the state level. Unfortunately, there are only ten states with legislation on the books that prevents discrimination based on sexual orientation: California, Connecticut, Hawaii, Massachusetts, Minnesota, New Hampshire, New Jersey, Rhode Island, Vermont, Wisconsin, and the District of Columbia (American Civil Liberties Union, 1998). Throughout the rest of the United States, employees fired for being gay, or even for merely being suspected of being gay, have no legal recourse (unless they are fortunate enough to work in a city or county that has its own local anti-discrimination ordinance).

Fortunately, despite the lack of workplace discrimination reform on their behalf, other legislative acts have been created to help homosexuals. One kind that has created some controversy is hate crime legislation. “The assault, robbery, crucifixion, and death on 1998-OCT-12 of Matthew Shepard, a gay University of Wyoming student, breathed new life in to the call for an upgrade to the Federal hate crime law” (Robinson, 2003, par. 1). Hate crime legislation is necessary for the health and well being of individuals who have been victimized due to their sexual orientation, because they suffer more serious psychological effects from hate crimes than they do from other kinds of criminal injury (American Psychological Association, 1998). The association the hate crime causes them to form between vulnerability and sexual orientation is particularly harmful, because sexual identity is such an important part of one's self-concept (American Psychological Association).

For many it is difficult to understand why social welfare benefits regarding employment were not extended to members of minority sexual orientation groups through the CRA or subsequent federal legislation, when members of those groups are allowed to access social welfare benefits in respect to enfranchisement, education, and public facilities. Whether homosexuality exists due to nature or nurture is irrelevant; gays and lesbians engage in loving, kind relationships that exist between consensual adults. Homosexuality should not be considered lewd perversion. In fact, a 1998 study conducted by the American Medical Association concluded that 90 percent of pedophiles are male and 95 percent of those males are heterosexual (Lopata, 2004, par. 6). The bottom line is that decades after the passage of the CRA, it can still be said that

qualified hard-working Americans are denied job opportunities, fired or otherwise discriminated against for reasons that have nothing to do with their performance and abilities. Employment discrimination based on sexual orientation, whether such orientation is real or perceived, effectively denies qualified individuals equality and opportunity in the workplace. Those who experience this form of discrimination have no recourse under current federal law or under the Constitution as the courts have interpreted them.

Employment discrimination strikes at a fundamental American value – the right of each individual to do his or her job and contribute to society without facing unfair discrimination. Fairness in the workplace has been recognized as a fundamental right protected under federal law. Currently, federal law provides basic legal protection against employment discrimination on the basis of race, gender, religion, national origin, or disability, but not sexual orientation or gender identity and gender expression.

(UUAC, 2003, par. 1-2)
According to a 2001 Gallup study, 85 percent of Americans support equal opportunity for gays and lesbians in the workplace (Human Rights Campaign, 2004, par. 2). The passing of ENDA would ensure their protection from employment discrimination. This would be a step in the right direction, in keeping with the original spirit of the CRA.




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