Protections for LGBTQ Workers Won't Work Unless Enforced | Opinion

The Supreme Court's landmark ruling on Monday—holding that the Civil Rights Act's ban on workplace sex discrimination also prohibits discrimination against gay and trans employees—is a long-fought triumph for the LGBTQ community. At a time of soaring trans unemployment, widespread violence against queer people of color and repeated attacks on the rights of LGBTQ Americans by the Trump administration, the decision will provide a bulwark against the unfair treatment too often meted out to gay, queer and trans employees and job applicants. But while the court's expansion of federal discrimination protections is a critical tool in the fight for LGBTQ rights, its potential impact may well be stifled by the Civil Rights Act's most persistent enemy: its own enforcement procedures.

When the Civil Rights Act was first signed into law in 1964, it was hailed as a revolutionary measure that would forever change the face of the American workplace, and indeed it has. Title VII of the act—which forbids job discrimination based on employees' race, sex, color, religion or national origin—has noticeably improved the fortunes of marginalized groups across the country, which has helped increase the percentage of women in the workforce and reduce the income gap between black and white households.

But more than half a century after its passage, the Civil Rights Act is still far from eradicating workplace discrimination. In 2020, women and people of color continue to report frequent discrimination at work, as a result of which they remain underpaid, underemployed and underrepresented in leadership positions compared to white men.

Why has this discrimination persisted? One part of the answer is simple—most of it goes unpunished. For example, while nearly a third of women experience workplace sexual harassment, a form of sex discrimination barred by Title VII, most never take action against their harassers, so nothing happens to them. Even when employees file discrimination complaints with the Equal Employment Opportunity Commission or in court, fewer than 20 percent ultimately receive any relief. As an employment lawyer specializing in cases of discrimination, I see this all the time: Clear-cut cases are dismissed; employers face few consequences; and the perpetrators keep on discriminating.

There are three changes that—if implemented by Congress—would improve enforcement of the Civil Rights Act for the better, giving victims including LGBTQ workers more power to hold employers accountable for wrongdoing.

First, Congress should extend the time period for employees to file complaints with the Equal Employment Opportunity Commission, the federal agency tasked with enforcing anti-discrimination laws. A victim of workplace discrimination has only 300 days (and in some cases, just 180 days) to file with the EEOC before losing their claims forever. Though that may seem like a lot of time, keep in mind that both state and federal law allows most other claims to be brought years after the fact. Someone who has been fired for discriminatory reasons or sexually harassed at work is often knocked sideways by it, needing to find another job, under constant pressure and most likely not having a lot of spare cash to hire a lawyer. Contract claims normally can be filed up to six years after the dispute, and claims can be filed two or three years after a car accident. It doesn't make sense to restrict employment claims to less than a year.

Second, Congress can expand the narrow definition of discriminatory harassment that now denies many victims justice. To win a claim of harassment under Title VII, employees currently must prove that they were subjected to a hostile work environment so "severe or pervasive" that it materially worsened their conditions of employment. While this standard prevents lawsuits based on employers' insensitive but ultimately inconsequential conduct, it can also cut off genuine victims of subtler forms of harassment. For example, if an employee is able to "power through" a colleague's repeated and gross sexual harassment without her work suffering, she will have trouble showing that it mattered enough to warrant the law's protection. No victim should be denied recourse because of her fortitude.

LGBTQ rights Supreme Court Stonewall
A man walks near memorial outside of the historic LGBT bar the Stonewall Inn to the victims of the Pulse night club shooting in Manhattan's West Village on June 15 in New York City. The Supreme Court ruled on Monday ruled that federal civil rights law protects workers from employer discrimination on the basis of their sexual orientation or gender identity. Spencer Platt/Getty

Other countries' laws already reflect the reality that some instances of discriminatory harassment have less visible or material effects on victims, which also deserve remedy. In England, where I am also an attorney, anti-discrimination laws require employees claiming harassment to show only that the harassment "violate[d] a person's dignity or ha[d] the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment," whether or not the harassment considerably worsened the employee's working conditions. As a result, my English clients are better able to contest harassment, an inherently discriminatory act, without having to prove its materially detrimental effects. Congress should adopt similar language to enable employees to bring a wider array of harassment claims against employers.

Finally, Congress should allow employees who are not part of a minority group to sue employers who permit discriminatory conduct to occur at work.For example, some workplaces may include a lot of racist jokes and slurs, but now only a black employee, a direct target, can sue for redress. It should be everyone's right to sue employers who do not do enough to curtail racist or other discriminatory conduct, which can be offensive and corrode workplace relationships for people outside the target group.

A rising tide of better enforcement can lift all boats—whatever their captain's gender identity, sexual orientation, race or national origin. It's time for Congress to take these simple steps.

Dr. Ann Olivarius is chair of the executive committee at McAllister Olivarius, a trans-Atlantic law firm specializing in harassment and discrimination.

The views expressed in this article are the writer's own.