Running head: DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 1

Discrimination against LGBT Public Personnel in the United States

Andrew G. Watts

The University of Georgia

DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 2

Abstract

Discrimination against applicants and employees based on sexual orientation and gender identity

has long been a matter of course in both the public and private sectors. Until 2011, LGB

Americans were unable to serve openly in the United States military, and transgender people are

still unable to do so. Many states, including Georgia, do not protect LGBT applicants or

employees though certain state agencies and local governments do. Nationally, there is no

prohibition on such discrimination in either public or private employment. 19 states, DC, and

Puerto Rico prohibit sexual orientation and gender identity discrimination in both the public and

private sectors. Also, six states currently prohibit LGBT discrimination for public employees.

This paper will briefly examine the history of discrimination against LGBT people in public

employment in the United States. It will review the rulings by the EEOC based on the

commission’s interpretation of the Civil Rights Act of 1964 that consider LGBT discrimination

to be sex discrimination. It will also review the statutory and administrative actions that have

been taken by states to ban LGBT employment discrimination, particularly in the public sector.

Finally, the paper will discuss the intended effects of pending federal legislation and recent

executive actions to protect LGBT federal employees and contractors.

DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 3

Discrimination against LGBT Public Personnel in the United States

Discrimination against lesbians, gay men, bisexuals, and transgender individuals in

employment practices remains a major issue in the United States. LGBT personnel still face pay

disparities, miss out on promotional opportunities, and may not be hired in new positions. In

many places, individuals can even be fired from their job for being LGBT. The law in this area is

rapidly evolving, with the past several years seeing the repeal of the US Armed Forces’ Don’t

Ask, Don’t Tell policy (Pub. L. 111-321, 124 Stat. 3515) and federal recognition of same-sex

marriages (United States v. Windsor, 2013). In 2014, President Obama signed an executive order

prohibiting federal contractors from discriminating because of sexual orientation or gender

identity. Despite these advances, particularly at the federal level, only nineteen states and the

District of Columbia have laws banning discrimination on these bases in all employment, and

several others ban such discrimination in public employment through personnel regulations, as

do many counties and municipalities.

This paper will briefly examine the history of discrimination against LGBT people in

public employment in the United States, including the historic prohibitions on gay men serving

in the military and national security-sensitive positions. It will review the rulings that have been

made by the Equal Employment Opportunity Commission over the past few years based on the

commission’s interpretation of the Civil Rights Act of 1964 that consider LGBT discrimination

as a form of sex discrimination. It will also review the statutory and administrative actions that

states have taken to ban LGBT employment discrimination, particularly as these laws address

public sector employment. Finally, the paper will discuss the status and intended effects of recent

(since 2010) and pending legislation (particularly the Employment Non-Discrimination Act and
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 4

the repeal of the Don’t Ask, Don’t Tell policy) and recent executive actions at the federal level to

protect LGBT federal employees and contractors from employment discrimination.

Historical Foundations

Laws were on the books and enforced from the earliest days of the Republic that

considered sodomy a felony, but homosexuality as a concept of something a person could be,

separate from actual sex acts, was not developed until the late 19th century (Homosexuality,

2015). It is notable that these laws originally generally prohibited “sodomy” as defined

regardless of the sex of the parties involved. For example, Georgia law (§16-6-2) defines sodomy

as “when he or she performs or submits to any sexual act involving the sex organs of one person

and the mouth or anus of another.” Such statutory prohibitions remained on the books in many

states until they were struck down by the Supreme Court in Lawrence v. Texas (2003). These

laws, which treated private sex acts by consenting adults as a matter of public policy, were used

against employees to deny or terminate their employment throughout at least the last century.

The founder of the Society for Human Rights was fired from the Post Office in 1925 because he

was gay (U.S. Merit Systems Protection Board, 2014, p. 1). According to the MSPB (2014),

federal policy was to only hire employees “of good moral character” (p. 1), and LGBT

individuals were considered “perverts.” Likewise, homosexuality was seen as a mental illness

until 1973 (MSPB, 2014; Homosexuality, 2015).

During the Cold War, gays and lesbians were largely excluded from federal service,

especially in security-sensitive positions, and according to David K. Johnson (2004),

homosexuality was related in the public mind to Communism, particularly by such prominent

officials as Sen. Joseph McCarthy and FBI Director J. Edgar Hoover. Hoover suggested that both

gays and Communists were susceptible to blackmail by foreign agents and that their loyalty to
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 5

the United States should be questioned (MSPB, 2014, p. 2). A Senate subcommittee on

Investigations found in 1950 that 1700 job applicants were denied because they were gay, while

420 existing federal employees were either fired or resigned after being investigated for the same

reason (MSPB, 2014, p. 3). There were substantial concerns both about the susceptibility of gay

Americans to blackmail and about the alleged practice of gay employees “recruiting” others to

join them in their “perverted practices” (MSPB, 2014, p.7). Worries about recruitment are, of

course, unsubstantiated, as the current scientific consensus is that individuals are born gay or

lesbian, rather than being “recruited” or “converted” during their lives.

While sodomy was a felony in all 50 states, DC, and the US military throughout the

1950s, there was less discussion of not hiring gay people for government positions due to their

illegal activities and a more general sense of “immorality,” “security risk, and general

unsuitability” based on public opinion. Moreover, in the 1960s, the FBI worked to produce a list

of gay Americans to compare applicants’ names against (MSPB, 2014, pp. 10-11) and blacklist

them from federal employment. By the late 1970s, public attitudes toward homosexuality were

changing, and the gay rights movement had been openly established with the Stonewall Riots of

1969 (Homosexuality, 2015). In 1978, the Civil Service Reform Act included the “Tenth

Prohibited Personnel Practice [PPP].” The tenth PPP specified that it was not appropriate to

discriminate against applicants or employees for what they did on their own time, provided it did

not affect their job performance (MSPB, 2014, pp. 18-19; 5 U.S.C. 2302(b)(10)). In a memo in

1980, the director of the Office of Personnel Management interpreted the tenth PPP to include

sexual orientation discrimination, and OPM reaffirmed this interpretation in 1994, 1997, and

2013 (MSPB, 2014, pp. 19-20). The CSRA also includes the “twelfth PPP” that prohibits

discrimination against a federal employee for exercising a constitutional right (MSPB, 2014, p.
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 6

21). Since the Supreme Court abolished sodomy laws in Lawrence (2003), federally recognized

same-sex marriage rights in United States v. Windsor (2013), and then extended the right of

same-sex couples to marry throughout the entire country in Obergefell v. Hodges (2015), this

may mean that new protections exist for LGBT federal employees under the CSRA.

Several executive orders in recent years have addressed employment non-discrimination

in federal service. In 1995, President Clinton signed Executive Order 12968, amending the rules

regarding criteria for security clearances. This amendment specified that no one should be

discriminated against in his or her application for a security clearance solely because of sexual

orientation, thus changing the long-standing policy described above of denying LGBT people

access to security-sensitive positions in government. President Clinton then further extended

protections to federal civilian employees with Executive Order 13087 in 1998, prohibiting

discrimination because of sexual orientation. Most recently, President Obama signed Executive

Order 13672 (2014), adding gender identity to the protections of Order 13087. This order also

prohibited federal contractors from discriminating because of either sexual orientation or gender

identity. Unfortunately, these executive actions are not binding policy, do not create any new

rights under the law, and could be reversed by a future president. Legislation has been introduced

in several recent sessions of Congress to codify these protections, but it has not been successful

thus far. These Employment Non-Discrimination Acts will be discussed in more detail in a later

section.

Unfortunately, little information is immediately available on the historical treatment of

LGBT state and local employees. It is reasonable, however, to assume that they have been and

continue to be subject to discrimination, particularly in states that have not enacted statutory

protections against such discrimination. These protections will be discussed in further detail in a
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 7

later section. Likewise, the Uniform Code of Military Justice banned sodomy among military

personnel until the Court’s Lawrence decision, and LGBT persons were prohibited from serving

in the military, subject to discharge and even incarceration. In 1993, President Clinton signed the

Don’t Ask, Don’t Tell policy into law as a part of the National Defense Authorization Act for

Fiscal Year 1994. This policy permitted LGB individuals to serve, provided that their sexuality

did not become known (Don’t Tell) and told superior officers not to investigate people without

direct evidence (Don’t Ask). The policy was repealed in 2010, and this repeal will be discussed

in further detail in a later section.

EEOC Input

The U.S. Equal Employment Opportunity Commission (EEOC) has ruled in several cases

starting in 2012 that discrimination because of sexual orientation or gender identity is prohibited

under Title VII of the Civil Rights Act 1964. Also in 2012, they adopted a “Strategic

Enforcement Plan” that considers discrimination against LGBT individuals an “enforcement

priority” (EEOC, 2015 [b]). The EEOC based its decision that Title VII applied to sexual

orientation on the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which stated

that “discrimination based on sex stereotypes…is unlawful sex discrimination under Title VII”

(EEOC, 2015 [a]). The Commission concluded first in Macy v. Department of Justice (2012) that

gender identity discrimination was impermissible because it was sex discrimination based on

expected gender roles. On the same basis, they found in David Baldwin v. Department of

Transportation (2015) that sexual orientation discrimination was also sex discrimination. EEOC

opinions are not legally binding outside of the federal government’s personnel procedures, but

they can be persuasive when courts are deciding cases.

DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 8

In Macy, the complaint of discrimination was raised by a transgender woman who was

told by a hiring manager at a Bureau of Alcohol, Tobacco, and Firearms lab that she had a job

with ATF pending a background check. She was “still presenting as a man” (Macy, 2012) during

the interview process and when she was promised a job. During the background check process,

she began to transition, and she notified the background check investigator of her transition. She

was subsequently told that the position was eliminated due to budget cuts, then that the position

had been filled by someone else. The EEOC noted in its Macy decision that a majority of the

Supreme Court (6 justices) in the Price Waterhouse case contemplated both gender identity and

biological sex as being encompassed by the term “sex.”

The EEOC concluded that gender identity discrimination was prohibited sex

discrimination under Title VII, supported by numerous district and circuit court decisions. These

include a 2011 decision from the 11th Circuit in Glenn v. Brumby (663 F.3d 1313) that gender

stereotypes are the essential basis of discrimination against transgender individuals. The EEOC

went on to conclude in David Baldwin v. Department of Transportation (2015) that sexual

orientation discrimination also constitutes sex discrimination using much the same rationale.

Essentially, the EEOC suggests, “sexual orientation discrimination also is sex discrimination

because it necessarily involves discrimination based on gender stereotypes” (Baldwin, 2015, p.

9). They gave the example of a male employee being disciplined for having a photo of a male

spouse on his desk where a female employee would not be disciplined for the same act (or switch

up the sex of any of the employees or spouses). The EEOC thus presents a theory that this

constitutes prohibited disparate treatment under Title VII.

DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 9

State and Local Protections

According to the Human Rights Campaign [HRC] (2015b), nineteen states and the

District of Columbia have statutory prohibitions on discrimination based on both sexual

orientation and gender identity that apply to both public and private employment. These states

are located exclusively in the Northeast, Midwest, and Western US. Three other states have

statutory bans on sexual orientation discrimination: New Hampshire, New York, and Wisconsin

(HRC, 2015b). Additionally, Indiana, Kentucky, Michigan, Pennsylvania, and Virginia have

protections through law or executive action for LGBT public employees, while Alaska, Arizona,

Missouri, Montana, and Idaho protect only LGB public employees. Notably, none of the states in

the Deep South have any statewide protections against discrimination because of sexual

orientation or gender identity. This lack of protection seems to run in line with the area’s

historical conservatism on social issues and delayed acceptance of social change.

In the absence of statewide protections, many localities have taken it upon themselves to

establish policies protecting LGBT workers in their jurisdiction. According to the Human Rights

Campaign (2015a), “at least 225 cities and counties” have ordinances prohibiting discrimination

against LGBT people in both public and private employment. There is some question in this

author’s mind whether local jurisdictions have the power to do this, but it seems to have held up

under scrutiny fairly well. Atlanta is one of the few cities in Georgia that has such an ordinance.

Discrimination in personnel matters is banned in Section 3-502 of Atlanta’s Code of Ordinances,

which states

“It shall be the policy of the city, its departments, and boards that all personnel matters shall be

determined solely on the basis of merit and qualification, without respect to race, color, creed,

religion, sex, domestic relationship status, parental status, familial status, sexual orientation,

national origin, political affiliation, gender identity or racial profiling.”

DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 10

Furthermore, Atlanta has a prohibition in its Charter against discrimination by the city “either

directly or indirectly” because of (among other things) sexual orientation or gender identity (City

of Atlanta Charter). Chapter 94 of Atlanta law also prohibits discrimination in various private

business functions, including membership of groups, housing opportunities, and employment

practices.

Some localities only extend their non-discrimination ordinances or policies to employees

of the local government. Athens-Clarke County falls into this category, with an ordinance that

states “No employee of the Athens-Clarke County Government shall be discriminated against in

promotion, discipline, pay, or any other conditions of employment based on race, color, sex,

sexual orientation, gender identity, religion, national origin, citizenship, age, disability, or

pregnancy” (Athens-Clarke County Code of Ordinances §1-17-1). The ordinance goes on to

define both sexual orientation and gender identity, implement an anti-harassment policy that

includes all the protected classes above, and provide for a complaint process (Ibid). Within

Georgia, Macon-Bibb County, Columbus, Savannah, and several cities in the Metro Atlanta area

also have similar policies in their local laws.

Even in the absence of protections in state law, some semi-independent state agencies,

including universities, may also have protections for LGBT employees. The University of

Georgia has a robust and well-supported Non-Discrimination and Anti-Harassment (NDAH)

Policy that includes sexual orientation and gender identity as protected classes for all

discrimination and harassment purposes on campus. This policy includes “employment, study, or

institutional services, programs, or activities” (UGA NDAH Policy). A process exists for

reporting and investigating policy violations, and the administration will take action when

needed to enforce the policy, despite the absence of a state law requiring them to do so.
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 11

Unfortunately, these local protections are sorely needed. According to Mallory and Sears

(2014), “LGBT people continue to face severe, and even violent, harassment and discrimination

in government workplaces.” They cite an analysis by the Williams Institute that claims that when

protections and a complaint process are in place, the rate of discrimination complaints because of

sexual orientation is “nearly as high” as sex and race discrimination complaints (Mallory and

Sears, 2014, p. 4). In their analysis, they found a rate of LGBT-related complaints in the public

sector that was almost the same as in the private sector. Further, they worry that reports may

significantly understate the actual frequency of discrimination for several reasons, including lack

of capacity or fear on the part of the LGBT employee of being outed even more publicly. This is

a worrying trend if the government has an obligation to be a model employer. Anecdotally, there

are issues even within the University. This author is personally aware of at least one case of

gender identity-based discrimination that has gone through the formal complaint process, but

comments and more subtle acts of homophobia and transphobia are still widespread in the

workplace, despite the best efforts of policymakers to prevent discrimination.

Don’t Ask, Don’t Tell

Until very recently, it was illegal for lesbians, gay men, and bisexuals to serve openly in

the United States military, and it remains illegal for transgender people to do so. Until 1993, it

was illegal for LGBT individuals to serve in the military at all, until President Clinton signed the

FY1994 defense appropriations act, which included the provisions that became known as “Don’t

Ask, Don’t Tell” (NDAA FY94, 1993). Under that policy, gay men and lesbians were allowed to

serve as long as their sexuality did not become known. Gay and lesbian service members were

forced to hide their personal lives from their colleagues or risk discharge. On the opposite side,

commanders were not supposed to inquire into the private lives of their subordinates and were
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 12

only meant to investigate if they received actual evidence that a service member under their

command was gay or lesbian. In practice, this was not always upheld, and many gays and

lesbians faced discharge while the policy was in effect.

During the Obama administration, it became a policy priority to repeal Don’t Ask, Don’t

Tell and allow lesbians and gay men to serve openly. Many, including “1,167 retired generals

and admirals” believed that such a repeal “would undermine combat effectiveness” (Belkin et al.,

2012, p. 588). They also asserted that allowing open service would harm recruiting and “break

the All-Volunteer Force” (Ibid.). Despite this opposition, there was widespread support in

Congress and the senior military leadership for repeal, and Congress acted to repeal Don’t Ask,

Don’t Tell in 2010 (Pub. L. No. 111-321). This law required the President, the Secretary of

Defense, and the Chairman of the Joint Chiefs to certify to Congress that their administrative

plans for repeal would not harm military readiness, followed by a sixty-day waiting period. This

certification took place in 2011, and the policy took effect in September of 2011.

Despite the new policy being implemented smoothly, Belkin et al. (2012) cite a survey

that found that 11 percent of LGBT respondents “mentioned disturbing incidents” (p. 593).

However, they also cite a survey that found a decrease in harassment from prior periods (Ibid, p.

594). Belkin et al. (2012) concluded that there was no decline in military readiness after the

repeal of Don’t Ask, Don’t Tell, despite the many predictions of doom before the repeal (p. 595).

They cite “extensive literature on foreign militaries that have allowed LGB troops to serve

openly (Belkin et al., 2012, p. 595), which have all shown that there is no negative effect from

allowing LGB troops to serve. Finally, there was “no wave of mass disclosures after repeal”

(Belkin et al., 2012, p. 595), and a Navy officer probably describes this best: “[M]ost gay people

handled themselves very professionally. You did not have people running in the streets in tutus,
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 13

and there was no basewide fanfare.” (Ibid.) Overall, the process of ending official discrimination

against LGB service members in the US military is proceeding apace, though transgender

individuals are still banned from open service. Perhaps this will be the next frontier of

employment non-discrimination on which the military can lead.

The Federal Employment Non-Discrimination Act

An Employment Non-Discrimination Act (ENDA) that would prohibit discrimination in

both the public and private sectors has been consistently introduced in Congress since 1994. The

most recent iteration included both sexual orientation and gender identity as banned forms of

discrimination, and it passed the Senate in 2013 (S.815) though the House declined to take it up.

The goal of this legislation is to provide essentially the same protection that Title VII provides

for its various protected classes (e.g. race, sex, religion) and to provide the EEOC with

jurisdiction to remedy complaints that are brought before it. Pizer et al. (2012) cite the

differences not just in actual employment and promotion of LGBT workers but in benefits, such

as access to health insurance (p. 760).

Martell (2013) suggests that ENDA is especially important because of the wage gap

between gay and straight employees. He found in his analysis that “the raw wage gap between

behaviorally heterosexual men and behaviorally gay men…is roughly $2.28 [hourly]” (Martell,

2013, p. 158). Martell’s (2013) model compared the wage gap between gay and straight men in

states that had and had not implemented ENDAs. He found that the wage differential was large

due to discrimination (that is, it existed when all other factors besides sexual orientation were

held equal). He also found that this differential decreased “by between 2 and 15% each year”

after implementation of ENDAs in the states. Both Pizer et al. and Martell believe that a federal

ENDA is important to ensure equal treatment nationwide, rather than on a statewide basis.
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 14

That is not to say that the proposed federal ENDA is without problems. Case (2014)

suggests that LGBT advocates should not be too quick to attach to it. She specifically cites issues

with religious exemptions, bans on BFOQ and preferential treatment, and the prohibition on

disparate impact claims. The act as most recently proposed has a broad exception for religious

organizations that may be construed even more broadly following the Burwell v. Hobby Lobby

case. However, this should not have a significant impact on public employment. More

concerning as regards public employees are the bans on consideration of sexual orientation as a

bonafide occupational requirement and the specific prohibition of any preferential treatment

based on demographics, along with the ban on any consideration of disparate impact. A final

Constitutional concern as it touches state employment is that the act as written (S.815) causes a

state to waive sovereign immunity (11th Amendment protection) by accepting federal money for

a program. While this type of federal action has been upheld numerous times, it is easy to

envision a conservative state with a particularly strong objection to LGBT rights attempting to

claim that this is unconstitutional coercion of the states, as the Supreme Court found relating to

the expansion of Medicaid in NFIB v. Sibelius (2012).

The Legacy Continues: Modern Discrimination

Besides the wage disparities found by Martell (2013), Tilcsik (2011) found that LGBT

people may face issues in getting a job in the first place. Tilcsik (2011) sent pairs of resumes to

employers for entry-level positions, one of which indicated that applicant had been involved in

an LGBT organization in college and the other of which did not. He controlled for a possible

political/activism bias by including on the “non-LGBT” resumes an organization that could also

represent “tactlessness” (Tilcsik, 2011, p. 617). He mentions that prevailing social norms seem to
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 15

be that a person should not list an LGBT organization on their resume, but he questions whether

that social norm may be a form of discrimination in itself (Tilcsik, 2011).

Pizer et al. (2012) cite results from the General Social Survey that indicate significant

discrimination remaining in employment against LGBT people. The GSS (at Pizer et al., 2012,

pp. 722-723) found that 42 percent of respondents had experienced discrimination. It also found

that a significant minority (33 percent) of LGB people were not “out” at work, with a majority of

those who are out facing discrimination and only 10 percent of those who remained closeted

facing discrimination. Harassment is by far the most common form of discrimination LGBT

people face at work, according to Pizer et al. (2012). The issue seems to be based on non-

conformity with social expectations of gender norms. Legally, the matter of discrimination based

on gender norms has been addressed by the Supreme Court in Price Waterhouse v. Hopkins

(1989), and the Court found that such discrimination was prohibited under Title VII. Case (2014,

pp. 1338-1342) discusses the legislative history of Title VII and suggests that gender

stereotyping was always meant to be included in the interpretation of the law. This history takes

on new importance with the recent decisions of the EEOC finding just that, and it may help

persuade the courts to adopt the EEOC’s view.

The executive has taken actions under President Obama to protect LGBT people from

discrimination in the federal sector and by federal contractors. Several states, along with many

county and city governments have taken their own legislative actions to provide employment

protections for LGBT people, and this is becoming more and more common, especially as

applied to the public sector. However, laws can only go so far. There is also a matter of cultural

change. Gay rights have become more and more acceptable to the general public over time, and

this continuing evolution should naturally lead to less discrimination over time. However, until
DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 16

that time comes, there remains a need for strong protections against discrimination enshrined in

law to protect all minorities. The merit principles demand that governments not base their

employment decisions on anything besides who is best able to do the job, and whatever aspects

of an employee’s life, whether race, religion, or sexual orientation, that does not impact on their

ability to do the job should not be considered in public employment.

Despite the many advances in legal protections that have been detailed above, LGBT

Americans still face significant discrimination in employment, even in the public sector. The

federal government has made progress, but much of that progress has been implemented through

executive action that could be overturned by a future conservative president at the stroke of a

pen. The decisions by the EEOC that have found protection under existing law (Title VII) for

sexual orientation and gender identity are more promising politically. In the present era of

legislative stalemate, it is unlikely that Congress would pass any Employment Non-

Discrimination Act, so executive and judicial actions become all the more important to ensure

that Americans do not finish discrimination because of who they are and to ensure that the

government takes the lead as a model employer.

DISCRIMINATION AGAINST LGBT PUBLIC PERSONNEL 17

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