It’s a quirk of history that a racist congressman who opposed integration in the 1960s paved the way for the first government lawsuits against anti-gay job discrimination.
For the first time, the Equal Employment Opportunity Commission has sued two companies for harassment based on sexual orientation. The commission interprets the ban on discrimination based on sex to include sexual orientation.
The folks who put together the Civil Rights Act of 1964 weren’t so evolved on gay rights. In fact, they didn’t ban gender discrimination in the original bill, either. For adding that one word, “sex,” to the list of prohibited forms of bias (race, color, religion and national origin), we have to thank Rep. Howard W. Smith of Virginia.
Smith, a conservative Democrat who died in 1976, was famous for blocking civil rights legislation. He’s credited with saying, “The Southern people have never accepted the colored race as a race of people who had equal intelligence … as the white people of the South.”
He was no friend of the landmark Civil Rights Act of 1964 either. When he proposed adding sex as a protected category of people in the workplace, it was a last-minute amendment that many thought was a joke. His mostly male colleagues burst into laughter.
Critics thought it was a cynical ploy to sink the whole bill. Some of the legislation’s biggest advocates opposed it. Already facing an uphill battle, they figured it would never pass if it protected women, too.
It turns out Smith actually did support women’s rights, if specifically for white women. Women’s rights activists had pushed for him to introduce the amendment, and they kept up the pressure after he did.
Whatever his complex motivations, Smith’s amendment survived, and President B. Lyndon Johnson signed the historic bill on July 2, 1964.
The ban on sex discrimination wasn’t taken seriously at first, even by the EEOC, but one scholar later called it “one of the most important advancements towards the goal of equality in United States history.”
Now, that same one-word tweak is being used to protect gays and lesbians in the workplace. One of the recent EEOC lawsuits accuses a medical center manager of berating a gay employee with repeated offensive slurs. The other says a pallet company fired a lesbian employee after she complained about her supervisor’s comments, such as, “I want to turn you back into a woman.”
When the lawsuits were announced, Chai Feldblum, the first out lesbian EEOC commissioner, tweeted, “This is BIG.”
Now, the courts will decide if the commission’s interpretation should stand.