“The Beard” – Sexual Orientation Discrimination

UPDATE: The below analysis was conducted before the Supreme Court ruled on June 15, 2020 that sexual orientation is protected from employment discrimination. Robert can shave his beard

Elaine’s friend Robert is afraid that he will be fired from his job because he is gay. To fool his boss into thinking he is straight, Elaine agrees to be Robert’s “beard” – a pretend girlfriend. If Robert were to shave his beard and be openly gay, is he protected from anti-discrimination laws?

The Federal Laws regarding employment discrimination based on sexual orientation have yet to be fully settled. Title VII of the 1964 Civil Rights Act, the primary Federal piece of legislation regarding discrimination, protects against sex based discrimination, but does not actually specifically state that discrimination based upon sexual orientation is illegal. Recently though, the Equal Employment Opportunity Commission has argued for a more expansive understanding of Title VII that includes protections based on sexual orientation, and while two Court of Appeals Circuits have ruled similarly, one Circuit has ruled against such protections. This is an area of law that is yet to be fully decided at the Federal level. The Supreme Court denied last year the opportunity to resolve this circuit split and there is currently a petition pending before the court to hear this issue and determine once and for all a uniform interpretation of Title VII on whether sexual orientation is protected by the statute.

I like the idea of having the law on my side.

In New York though, discrimination based on sexual orientation is addressed by New York’s Sexual Orientation Non-Discrimination Act (SONDA), which prohibits discrimination in employment, housing, education, and public accommodation based on actual or perceived sexual orientation. Meaning, whether an employer actually were to see Robert playing shortstop or whether he just infers it from Robert’s love of sex and shopping, either way Robert should have stable job security. However, before Robert celebrates with another outing at the ballet with Elaine, he should note that at the time of the airing of “The Beard” he was not actually protected by the SONDA legislation because it did not fully pass through the New York Legislature until 2002 and was not signed into law by Governor George Pataki until 2003. While SONDA did pass the Assembly in 1993 (after two failed attempts in the 1970’s and 1980’s), 2 years before Robert’s predicament, it stalled in the Senate for the rest of the 1990’s until 2002. Therefore, Robert had good reason to worry in 1995 that he could be fired for being on his team, as he was neither protected by New York State law nor Federal law.

Robert is not exactly a one-woman man, if you know what I mean.

The Supreme Court has, since the turn of the century, interpreted the Constitution to be protective of many LGBT rights, including striking down sodomy laws, and finding that State bans on same sex marriage violate the 14th Amendment’s Due Process and Equal Protection clauses. The Supreme Court has already declined to hear a case about sexual orientation bias in the workplace, and it is yet to be seen whether it will hear such case in a coming term. But with the circuit split noted above, it is expected that the Supreme Court will one day have to determine whether Title VII covers discrimination based on sexual orientation.

Nowadays, Robert’s sexual orientation is protected from employment discrimination by New York State law, as well as the laws of about 20 other states and the District of Columbia. But there is currently no Federal legislation directly prohibiting discrimination in employment based upon sexual orientation, and the Federal Courts are split as to whether Title VII prohibits it either. So as long as Robert continues working in New York, today he can feel comfortable shaving off that beard and keeping his position as starting shortstop.

But I'm a starting shortstop.

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