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Wed April 2, 2014
Equal Employment Agency No Longer Turning Away Gay Discrimination Claims
Originally published on Wed April 2, 2014 11:28 am
MICHEL MARTIN, HOST:
I'm Michel Martin, and this is TELL ME MORE from NPR News. Today, we start with an issue that's increasingly making headlines here and in other parts of the world. We're talking about the rights of LGBT people. The issue that's been in the headlines most has been same-sex marriage. But there's another issue that many consider even more important, and that's workplace discrimination. According to the Pew Research Center, 57 percent of LGBT people say equal employment rights should be a top priority, even more than gay marriage. And this issue is in the news again in the U.S. because the Christian charity World Vision announced last week that it would begin to hire married LGBT Christians, but then reversed course after two days after complaints from conservative Christian supporters. And many people are seeing this as another example where religious rights and other civil rights conflict.
Now one of the people tasked with reconciling those kinds of conflicts is the person we're going to meet now. Chai Feldblum is a commissioner of the Equal Employment Opportunity Commission - the EEOC. That agency is tasked with enforcing federal employment anti-discrimination law. She's the first openly gay person to hold that position, and she is with us now in our Washington, D.C. studios. Welcome, commissioner. Thanks so much for joining us.
CHAI FELDBLUM: It's a pleasure.
MARTIN: You know, in this country, quite frankly, we don't hear that much about people being discriminated against in the workplace because they are gay or lesbian. And I was wondering if the EEOC gets complaints in this area, and does the agency have the authority to look into those complaints?
FELDBLUM: Well, there, unfortunately, is still a lot of discrimination against people either because they're gay, lesbian, bisexual or transgender.
MARTIN: How do we know that?
FELDBLUM: Well, for many years, I think if they had come to the EEOC, the EEOC just told them that there was no jurisdiction for the EEOC to hear those claims. So we actually wouldn't know. About two years ago, the EEOC ruled that someone who's transgender and discriminated against on that basis is a form of sex discrimination. And then at some other opinions we also explained how people who are discriminated against based on their sexual orientation, that can also be a claim of sex discrimination. Now charges are coming in to our offices and they're not being turned away. So we have about 200 or so pending investigations right now that have been brought to us by LGBT people. And we're looking into those charges.
MARTIN: Now as I understand it, 29 states do not have laws that explicitly protect gays and lesbians from employment discrimination. And as I understand it, there is no specific federal protection against discrimination based on sexual orientation. Do I have that right?
FELDBLUM: You have that correct.
MARTIN: So what is your authority in this area?
FELDBLUM: So we are addressing these charges as claims of sex discrimination. I mean, in the states that explicitly have protection for someone who has experienced discrimination based on sexual orientation, it makes sense to go with the state law. It says that explicitly. But in all those other states, while there is no federal law that says sexual orientation is prohibited or gender identity is prohibited as a basis of discrimination, there is a federal law that says employers may not take sex into account when they engage in an employment decision. Now early on people didn't think that sexual harassment was a form of sex discrimination. The EEOC said no, that is a form of sex discrimination. We took in charges. We investigated. Some courts agreed with us, some courts didn't. Ultimately, the Supreme Court agreed. So I expect the same trajectory to happen here.
MARTIN: But that has not yet happened. The EEOC has not yet litigated a matter based on sexual orientation that has worked its way through the courts.
FELDBLUM: That's correct. That's the process that I think we're looking towards but has not happened yet.
MARTIN: Now you're one of the authors of the Employment Non-Discrimination Act, and that's a bill that would specifically protect sexual orientation in the workplace across the country. It has been brought up a number of times and has never passed. And I'm interested in your opinion about why you think that is the case.
MARTIN: Why hasn't it?
FELDBLUM: So, you know, it's funny. I often say it - I don't have kids, but I have laws. Instead of it's a boy, it's a girl - it's a law. The thing is, laws sometimes take longer than nine months to get done, and they just depend on lots of other factors. So I think that there are still some small but vocal groups that it's hard to imagine that bill going through under a leadership that doesn't want to let it go through. So I think we're in this interesting situation in this country where the polls consistently show that an overwhelming majority of people support non-discrimination protection for LGBT people. But in terms of translating that into the politics of specifically the House of Representatives, that's just tough.
MARTIN: If you're just joining us, we are speaking with Chai Feldblum. She's a commissioner of the Equal Employment Opportunity Commission - the EEOC. That agency is tasked with enforcing federal laws against discrimination in the workplace. One area of concern is religious freedom. And the issue we spoke about earlier that the Christian charity World Vision first saying it would hire professed Christians who are in same-sex marriage.
The leadership of this organization said that they had prayed over this for years. And then reversed course after two days saying that it would revert to its existing policy to not hire persons who are out LGBT people because they said that they felt that they had to uphold their religious doctrine. Now that is a concern for many people. I understand it's a very big topic. There's a lot of law on it. But can you just briefly describe how you think a free society is going to reconcile something like that?
FELDBLUM: You know, it's a big topic, but I think it's actually pretty simple in a sense for people to understand what we have already decided as a country. And let me say, I grew up as a very Orthodox Jewish person. So I am not a practicing Orthodox Jew now, but I have incredible sympathy and understanding for the feeling you have when as a religious belief, you feel you have to act in a certain way. We wrestled with it - we the country. Congress, when it passed the Civil Rights Act of 1964, it said a religious organization can discriminate on the basis of religion. A Christian organization, if it is a religious organization, can say I'm hiring only Christians. A Jewish organization can say I'm hiring only Jews. And in 1987, '88, I was clerking for Justice Harry Blackmun, and the Supreme Court got the case of Amos v. The Mormon Church. Amos was a building engineer. The Mormon Church owned this big gym in Salt Lake City that he worked in, and they fired him because he wasn't a, quote-unquote, good Mormon. He wasn't tithing, etc. The Supreme Court upheld the right of the Mormon Church to do that because the Mormon Church is a religious organization. At the same time, the courts got claims from individual Christians saying it's against my religion for blacks and whites to intermingle, you know, and I don't want them in my barbecue shop. And the courts were consistent with saying sorry, you know, you're in commerce. This is the law.
That's what you have to comply with. So I think we as a country have made the right distinction between actual religious organizations. And we've distinguished that from individual religious people because otherwise - otherwise it's a free-for-all in terms of someone saying, oh, that's my religious belief.
MARTIN: Can I ask you about the question - and I'm going to ask this question knowing that it may offend you - the question around objectivity in this area. There are some who would wonder how, as a person who's - has a long record of advocacy in the area of LGBT rights and other areas, by the way, in disability rights as well - when you're in a position like this as a kind of a policymaking body, as a decider, can people call upon your objectivity recognizing, as you would imagine that I would, that everyone has not asked this question. But I would ask if you would indulge me in answering it.
FELDBLUM: Oh, absolutely. I mean, obviously, you would want someone who's an African-American and someone who's a white person to be able to look at the law of Title VII and apply it as it should be applied. You would want someone who's a Christian and someone who's a Jew to be able to look at issues of religious freedom and apply the law. You would want someone who's gay and someone who's straight to be able to look at the issue and apply it as the law requires.
I mean, I don't think you can say we'll never have a black person judge decide a civil rights case or a white person, I mean, 'cause you could say, well, we'll never let heterosexual people decide these questions because they might not be objective. So, I mean, obviously, you have to trust in your judges and in your agency officials that when they took that oath - when I took that oath to uphold the Constitution, what that meant was I was going to apply the words of the law to the best of my understanding of how they should be applied and not be in the role that I was for 20 years before I came on the commission. Before that I was an advocate - advocate for Catholic Charities U.S.A., advocate for disability groups, advocates for gay groups. That was very clear where my allegiance was. It was to my client. Now my allegiance is to the law.
MARTIN: Before we let you go, speaking of another law, you did have a lead role in writing the Americans with Disabilities Act, which was signed in 1990, widely credited with opening doors for people with disabilities by providing equal access to accommodations and other opportunities. I'm curious about your reflections 25 years later.
FELDBLUM: You know, I told you instead of kids, I have laws, right. Kids go off to school. They come back. They've got purple hair and nose rings. You're like, who are you? Laws go off to court. They meet judges, and suddenly the judges are interpreting the words in a way that Congress did not intend. And so I think it was very important that in 2008 Congress passed the ADA Amendments Act of 2008 that restored a broad definition of disability. I guess part of what I would hope is that the disability community learns from the LGBT community about the importance of coming out. I mean, I on my Twitter feed - @chaifeldblum for all you Twitter fiends out there - I say that I have a hidden disability of anxiety disorder because I want to destigmatize mental illness. So I'm really hoping that in the next few years that more people will come out as people with disabilities, and maybe that'll start shaping people's societal expectations.
MARTIN: What do you hope to accomplish in your term as EEOC commissioner? How will you know whether you have succeeded, according to your own standard?
FELDBLUM: I'm sorry I didn't wear my - I have a hat. I wrote on my hat four year strategic plan 'cause my term is up in 2018. But mostly, I would hope that generally the agency is working well with businesses. So we are working in partnership to stop unlawful employment discrimination, which means giving employers the chance to fix things right when we find out about them and making clear to employers that we will sue them if we need to because that's the best way to make sure someone wants to fix things early. I would say also, I'm obviously interested in areas of disability, LGBT coverage, gender equity and religious freedom. I mean, those are sort of the issues that I have focused on in my life.
MARTIN: Chai Feldblum is a commissioner of the Equal Employment Opportunity Commission - the EEOC. She was kind enough to join us in our Washington, D.C. studios. Commissioner Feldblum, I hope you'll come back and see us. Thank you so much for joining us.
FELDBLUM: It's been a delight. Transcript provided by NPR, Copyright NPR.