Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Obvious, actually.
So can Walmart not hire conservatives or gays or whatever? Walmart is not public, they are private
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Obvious, actually.
So can Walmart not hire conservatives or gays or whatever? Walmart is not public, they are private
Walmart will not refuse to hire gays because if they do the Equal Employment Opportunity Commission (EEOC) will rule against them and the courts are not likely to overturn the EEOC. I have a JD (Juris Doctorate, so let me explain).
Lower courts have issued conflicting opinions on this issue and the United States Supreme Court (SCOTUS) has not made a decision on this specific issue. However in the case of Price Waterhouse v Hopkins the SCOTUS concluded that discrimination based upon sexual stereotypes is a violation of Title VII. The case involved a woman who was denied a promotion because he employer thought she was not feminine enough in the way she walked, talked, dressed and acted. Here are the details:
“Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership.
Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as "
n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).”
Examples of Court Decisions Holding LGBT-Related Discrimination Actionable Under Title VII
(Note: The above link also gives examples of lower court rulings showing that sexual orientation is protected against discrimination.)
It seems to me me that if discrimination based upon sexual stereotyping is a violation of Title VII so would discrimination based upon sexual orientation. After all, the disparate treatment of gays and lesbians is based upon their non-conformity to the stereotype of what others expect their sexual behavior to be. I expect the SCOTUS to find that sexual orientation is afforded the full protections of Title VII. Further the SCOTUS has shown that they generally give deference to rulings made by the Equal Employment Opportunity Commission (EEOC) and The EEOC has already taken a position that Title VII of the Civil Rights Act affords protection from discrimination on the basis of sexual orientation.
“In 2012, David Baldwin, a federal employee, filed an administrative charge of discrimination with the EEOC, alleging he was discriminated against because of his sex and sexual orientation. Specifically, Baldwin alleged he was denied a promotion because he is gay. In its decision, the EEOC relied upon the existing prohibition on discrimination based on sex-based stereotypes or assumptions, concluding it “applies equally in claims brought by lesbian, gay and bisexual individuals under Title VII.” According to the EEOC, “sexual orientation is inseparable from and inescapably linked to sex.” Without resolving the merits of the claim, the EEOC ultimately found that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” See Baldwin v. Foxx, FAA-2012-24738 (EEOC June 15, 2015).”
EEOC says sexual orientation protected under Title VII | JD Supra
CONCLUSION: The lower courts are in disagreement regarding whether discrimination based upon sexual orientation is a violation of Title VII. The SCOTUS has not addressed the issue head on; however, the Court has found discrimination based upon sex stereotyping to be a violation of Title VII and in my opinion it is impossible to separate sexual orientation from sexual stereotyping. The EEOC has already ruled that discrimination based upon sexual orientation is a violation of Title VII and the SCOTUS usually goes along with the EEOC in matters of policy.
When the SCOTUS gave gays the right to marry, most legal scholars believed the Court's decision did not make homosexuals a protected class (and thus subject to the provisions of Title VII). However, the Court's opinion in Oncale v. Sundowner Offshore Serv. seems to say that gays are in fact afforded such protection. Unfortunately, the SCOTUS did not rule on the case, electing instead to remand it to the lower court for further consideration; however, the EEOC leaves no doubt that gays are afforded the same protections under Title VII as any other protected class. Where will it end? I predict that if SCOTUS issues a final ruling on the issue, the Court will include protections for sexual orientation.
