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Note

Wrongful Termi(gay)tion: A Comparative Analysis of Employment Non-Discrimination Laws and LGBTQ+ Workplace Protections in South Africa and the United States

Jared Ham, B.A., Cornell University, 2015; J.D., Cornell Law School, 2019

15 Nov 2018

Every American deserves the freedom and opportunity to dream the same dreams, chase the same ambitions, and have the same shot at success[.] A growing number of Americans recognize that their LGBT[Q+] family members, friends, and neighbors deserve to be treated like everyone else in the United States. Yet today in America, in the majority of states, LGBT[Q+] Americans live without the protection of fully-in- clusive non-discrimination laws. I believe America is ready to take the next steps forward in the march for fairness, equality, and opportunity for every American. It is time to take bold legislative action.1Press Release, U.S. Senator Tammy Baldwin, Historic Comprehensive LGBT Non-Discrimination Legislation Re-Introduced in Congress (May 2, 2017), https://www.baldwin.senate.gov/press-releases/equality-act-2017 [https://perma.cc/X8UR-ASW5].

– U.S. Senator Tammy Baldwin

Although the United States has made great strides toward equality for its LGBTQ+ citizens in recent years, South Africa has demonstrated far greater progress concerning equal protection and employment non-discrimination of its LGBTQ+ citizens. The South African Constitution, for example, expressly prohibits all unfair discrimination on the basis of sex, gender, or sexual orientation, whether the government or a private party committed it. In December 2005—a whole decade before Obergefell v. Hodges2135 S. Ct. 2584 (2015).—the South African Constitutional Court handed down Minister of Home Affairs v. Fourie, a landmark decision that legalized marriage equality.32006 (1) SA 524 (CC) (S. Afr.). Moreover, unlike the United States, South Africa has federal laws that prohibit employment discrimination against its LGBTQ+ citizens and provide them with robust workplace protections.

This Note contends that employment non-discrimination laws and workplace protections for LGBTQ+ citizens in the United States are woefully inadequate. Although some states afford robust protections for those who reside within their borders, many states do not.4See infra subpart II.A. This results in a legal system in which some citizens are protected by law against employment discrimination on the basis of sexual orientation and gender identity while others are not. “[E]qual dignity in the eyes of the law”5Obergefell, 135 S. Ct. at 2608. cannot and should not depend on one’s zip code. Thus, this Note further contends that the U.S.’ lawmakers and policy- makers should look to South Africa as a model for implementing federal laws that prohibit employment discrimination against LGBTQ+ citizens and provide substantial workplace protections.6Other commentators have also advocated that the United States’ lawmakers and policymakers should look to South Africa as a model for protecting the rights of LGBTQ+ citizens. See, e.g., Eric C. Christiansen, Exporting South Africa’s Social Rights Jurisprudence, 5 LOY. U. CHI. INT’L L. REV. 29, 41 (2007) (“[The South African social rights jurisprudence model] is exportable to other nations seeking to enforce enumerated socio-economic rights because South Africa has created its affirmative social rights jurisprudence that internalizes country-specific justiciability concerns.”); Lisa Newstrom, Note, The Horizon of Rights: Lessons from South Africa for the Post-Goodridge Analysis of Same-Sex Marriage, 40 CORNELL INT’L L.J. 781, 803–04 (2007) (“Until American judges and lawmakers are willing to learn from Fourie’s analysis by adapting and improving upon it . . . the balance will remain skewed against same-sex families before the doors to the courtroom even open.”).

Although it is unlikely that the U.S. Constitution will be amended to join the South African Constitution in prohibiting discrimination on the basis of sexual orientation or gender identity,7Cf. Rick Jervis, Voices: Constitutional Convention an Unlikely Reality, USA TODAY (Jan. 26, 2016, 12:17 PM), https://www.usatoday.com/story/opinion/ voices/2016/01/26/voices-constitutional-convention-greg-abbott/78849240/ [https://perma.cc/AU84-BWKA] (“It’s hard to imagine 34 states deciding on any one thing. Getting 38 of them to agree on a single amendment seems like an impossible dream.”); Thomas F. Schaller, The End of Amendments?, U. OF VA. CTR. FOR POL. (Mar. 27, 2014), http://www.centerforpolitics.org/crystalball/articles/ the-end-of-amendments/ [https://perma.cc/V4N5-FARH] (“[T]he fact is plans to amend the Constitution are mostly a waste of time because, other than a widely popular and highly-unifying suggested change, it is probably almost impossible to ratify or even propose amendments in our highly-polarized nation and divided national government.”). there are other avenues to provide equally robust workplace protections for LGBTQ+ individuals. Perhaps the most promising avenue is federal legislation that mirrors South African laws.8See infra subpart I.C. Indeed, members of Congress have proposed pieces of legislation that would effectuate significant progress in this area of the law.9See infra Part IV. But not all of the proposed pieces of legislation are adequate.10Cf. Ed O’Keefe, Gay Rights Groups Withdraw Support of ENDA after Hobby Lobby Decision, WASH. POST (July 8, 2014, 4:37 PM), https:// www.washingtonpost.com/news/post-politics/wp/2014/07/08/gay-rightsgroup-withdrawing-support-of-enda-after-hobby-lobby-decision/?utm_term= .C6589d4152d6 [https://perma.cc/6BMP-R86S] (“The bill’s religious exemptions clause is written so broadly that ‘ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations . . . a blank check to engage in workplace discrimination against LGBT[Q+] people . . . .’”). The United States should strive to implement non-discrimination laws and workplace protections that are equally as forceful as those in South Africa. The Equality Act, rather than the Employment Non-Discrimination Act, is therefore the better piece of proposed legislation to adopt. In the absence of federal non-discrimination laws and workplace protections, each state should continue to “serve as a laboratory” and “try novel . . . experiments.”11New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Additionally, Fortune 500 companies should continue to lead the way in the private sector by providing substantial workplace protections to their LGBTQ+ employees.12See infra subpart IV.C.

In Part I, this Note reviews South African non-discrimination and equal-protection law and jurisprudence by discussing the South African Constitution, landmark Constitutional Court cases, and significant legislation. The cornerstone of South African non-discrimination and equal-protection law and juris- prudence is the Bill of Rights, which explicitly protects LGBTQ+ South Africans from discrimination. The government has reaffirmed the Constitution’s commitment to equal rights for LGBTQ+ South Africans through court decisions and acts of Parliament. This Note argues that South Africa’s progressive non-discrimination and equal-protection legal regime should serve as a model for the United States, which currently lags behind much of the Western democratic world.

In Part II, this Note assesses the current state of non-discrimination and equal-protection law and jurisprudence in the United States. Some states have stringent employment non- discrimination laws and provide robust workplace protections to its LGBTQ+ citizens. But other states have no workplace protections for its LGBTQ+ citizens. And on the federal level, there is no legislation prohibiting employment discrimination based on sexual orientation or gender identity in the private sector.

In Part III, this Note considers the extension of the protections included in Title VII of the Civil Rights Act of 1964 to LGBTQ+ individuals. The Equal Employment Opportunity Commission has adopted this approach. The federal courts, however, have been more reluctant to do so because the Supreme Court has not expressly decided the issue. Indeed, the Supreme Court recently denied a petition for writ of certiorari in a case dealing with employment discrimination on the basis of sexual orientation and gender identity.

In Part IV, this Note discusses two proposed pieces of federal legislation that address employment discrimination based on sexual orientation and gender identity. Although LGBTQ+ advocacy organizations and their allies once supported the Employment Non-Discrimination Act, they have since withdrawn their support for the Act because of its modesty. The better piece of legislation, this Note argues, is the Equality Act. The Equality Act extends Title VII’s protections to LGBTQ+ individuals and better follows the non-discrimination and equal-protection law and jurisprudence of South Africa.

To read more, click here: Wrongful Termi(gay)tion: A Comparative Analysis of Employment Non-Discrimination Laws and LGBTQ+ Workplace Protections in South Africa and the United States.

References   [ + ]

1. Press Release, U.S. Senator Tammy Baldwin, Historic Comprehensive LGBT Non-Discrimination Legislation Re-Introduced in Congress (May 2, 2017), https://www.baldwin.senate.gov/press-releases/equality-act-2017 [https://perma.cc/X8UR-ASW5].
2. 135 S. Ct. 2584 (2015).
3. 2006 (1) SA 524 (CC) (S. Afr.).
4. See infra subpart II.A.
5. Obergefell, 135 S. Ct. at 2608.
6. Other commentators have also advocated that the United States’ lawmakers and policymakers should look to South Africa as a model for protecting the rights of LGBTQ+ citizens. See, e.g., Eric C. Christiansen, Exporting South Africa’s Social Rights Jurisprudence, 5 LOY. U. CHI. INT’L L. REV. 29, 41 (2007) (“[The South African social rights jurisprudence model] is exportable to other nations seeking to enforce enumerated socio-economic rights because South Africa has created its affirmative social rights jurisprudence that internalizes country-specific justiciability concerns.”); Lisa Newstrom, Note, The Horizon of Rights: Lessons from South Africa for the Post-Goodridge Analysis of Same-Sex Marriage, 40 CORNELL INT’L L.J. 781, 803–04 (2007) (“Until American judges and lawmakers are willing to learn from Fourie’s analysis by adapting and improving upon it . . . the balance will remain skewed against same-sex families before the doors to the courtroom even open.”).
7. Cf. Rick Jervis, Voices: Constitutional Convention an Unlikely Reality, USA TODAY (Jan. 26, 2016, 12:17 PM), https://www.usatoday.com/story/opinion/ voices/2016/01/26/voices-constitutional-convention-greg-abbott/78849240/ [https://perma.cc/AU84-BWKA] (“It’s hard to imagine 34 states deciding on any one thing. Getting 38 of them to agree on a single amendment seems like an impossible dream.”); Thomas F. Schaller, The End of Amendments?, U. OF VA. CTR. FOR POL. (Mar. 27, 2014), http://www.centerforpolitics.org/crystalball/articles/ the-end-of-amendments/ [https://perma.cc/V4N5-FARH] (“[T]he fact is plans to amend the Constitution are mostly a waste of time because, other than a widely popular and highly-unifying suggested change, it is probably almost impossible to ratify or even propose amendments in our highly-polarized nation and divided national government.”).
8. See infra subpart I.C.
9. See infra Part IV.
10. Cf. Ed O’Keefe, Gay Rights Groups Withdraw Support of ENDA after Hobby Lobby Decision, WASH. POST (July 8, 2014, 4:37 PM), https:// www.washingtonpost.com/news/post-politics/wp/2014/07/08/gay-rightsgroup-withdrawing-support-of-enda-after-hobby-lobby-decision/?utm_term= .C6589d4152d6 [https://perma.cc/6BMP-R86S] (“The bill’s religious exemptions clause is written so broadly that ‘ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations . . . a blank check to engage in workplace discrimination against LGBT[Q+] people . . . .’”).
11. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
12. See infra subpart IV.C.

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