Gay Rights in the Workplace

Katherine Turk’s recent article, ‘Our Militancy is in Our Openness’: Gay Employment Rights Activism in California and the Question of Sexual Orientation in Sex Equality Law, offers a deeply researched history of gay rights activism in California—“the epicenter of the gay employment rights movement” (P. 426)—that engages important questions about the benefits and limits of different legal strategies. In this detailed local history of the gay employment rights movement, Turk discusses the work of a number of advocacy organizations in the state—including the ACLU of Southern California, the Los Angeles Gay and Lesbian Center, the Metropolitan Community Church, the Society for International Rights, the Committee for Homosexual Freedom, the Committee on Rights within the Gay Community, and the National Gay Rights Association—through which activists pressed for equal rights in the workplace. Although this movement was dominated by gay men, Turk makes clear that it is not a story of a fractured movement. Instead, activists throughout the gay community understood the prosaic importance of employment rights, and the employment nondiscrimination litigation at the center of her narrative “embodied some of the most universal and consistent claims at the heart of the modern gay rights movement.” (P. 428.)

Activists called for a new model of workplace rights, as they sought legal protections that combined the equality arguments used by women and people of color with gay liberationist arguments that embraced sexual orientation. In doing so, they contended “that a worker’s gender and sexual orientation were irrelevant to his or her ability to perform a job, but that the freedom to signal those identities was an essential element of workplace equality.” (P. 426.) Thus, the gay employment rights movement rejected equality arguments based in sexual privacy, “which assumed that people could—or should—leave their sexual identity behind at the office door.” (P. 435.)  Instead, activists argued, gay and lesbian workers should be able to participate in the workplace in the same way their heterosexual colleagues did—as workers with professional skills and rich personal lives.

However, as Turk demonstrates, gay employment rights arguments were met with a cool reception.  Complicating the traditional rights-affirming narrative of Title VII of the Civil Rights Act of 1964, she demonstrates that the statutory and judicial landscape of the 1970s was not open to employment discrimination claims based on sexual orientation. The limitations of Title VII, which activists tried—and failed—to use to their own benefit, are particularly apparent in the story of the litigation involving Pacific Telephone & Telegraph (PT&T), one of California’s largest employers. Although plaintiffs offered evidence that PT&T was actively hostile to gay and lesbian workers, judges refused to accept arguments that sexual orientation deserved inclusion under Title VII’s ban on sex discrimination. As a result, “courts effectively severed sex from gender and sexual orientation before the law and reinforced notions of sex as biological and natural, unlike gender and sexual orientation”; judges’ insistence that sexual orientation, unlike sex, was not an immutable category meant that gay men and women were unable to draw on the sex-discrimination language in federal law. (P. 430.)

The judicially defined limits of Title VII led to two different paths to employment rights. Individuals bringing claims of discrimination on the basis of race, ethnicity, or sex were able to seek remedies in federal courts, while individuals facing discrimination due to their sexual orientation were limited to state and local remedies. The latter did offer some protections; Turk makes clear the variety of ways in which activists successfully worked pressured public and private employers to change their hiring policies, and won city and state-level bans on discrimination in municipal hiring. However, these victories resulted in “a piecemeal set of provisions that substituted voluntary corporate action, interest group pressure, and scattered local laws and court decisions in place of strong, uniform protections from discrimination.” (P. 460.) It also “accelerated the divergence between the movement for gay rights and those of other minorities.” (P. 431.) This divergence made discrimination claims harder to remedy; it also meant that these protections remained partial once conservatives fought back against the gains of the gay rights movement and once the AIDS epidemic pushed gay rights activists away from efforts to achieve broad workplace rights.

Turk’s article does an excellent job combining local history with an important story about the use of law for social change. The article makes clear the very real successes that the gay employment rights movement achieved at local levels, and indicates the amount of effort such successes required. (Crucially, it also describes how private-sphere efforts complemented legal ones.) At the same time, Turk shows how these protections nonetheless often fell short of their goals. Most importantly, she indicates that the gay employment rights movement offered paths not taken—both for gay and lesbian employees, but also for Title VII claimants more broadly. This was a particular loss for women; as she concludes, gay activists’ emphasis on free expression “represented a profound challenge to the regime of gender conformity and masculine privilege that still structures the typical American workplace.” (P. 469.)