Is There “Equality” in the Equality Act?

by Evil HR Lady on July 18, 2019

When we hire people, the only consideration should be how well the can do the job. Race, gender, sexual orientation, or religion shouldn’t be a concern. Title VII of the Civil Rights Act protects people against discrimination on the basis of “race, color, religion, sex and national origin.” Later acts protected people over 40 from discrimination (ADEA), Pregnancy (Pregnancy Discrimination Act), and people with disabilities (ADA).

When Congress passed these laws and the president signed them, sexual orientation wasn’t on the forefront of the public mind. That, obviously, has changed and today, it’s front and center in our world. The courts have given a mishmash of decisions that vary on the issue of gender identity and sexual orientation in employment.

Some courts have come back and said that even though sexual orientation and gender identity was not listed in Title VII, clearly it falls under “sex” discrimination. Some courts have come back and said, nope; it’s not covered. The Supreme Court has agreed to hear a group of conflicting cases.

But making non-discrimination policy or not, ultimately falls to Congress. This shouldn’t be left to the Supreme Court, whose job is to interpret the law, not create it. I agree with Second Circuit Court Judge Gerard E. Lynch’s dissent in one of these cases. He wrote:

To keep reading, click here: Is There “Equality” in the Equality Act?

{ 16 comments… read them below or add one }

Dawn King July 18, 2019 at 2:09 pm

Agreed. I’m starting a business and this conflict is in the forefront of my mind. I will probably narrowly target my customers and not do custom work at all because I don’t want to be faced with this.

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Dorothy July 18, 2019 at 5:43 pm

“I will probably narrowly target my customers and not do custom work at all because I don’t want to be faced with this.”

You don’t want to be “faced” with potential customers seeking to pay you for your goods and services?

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grannybunny July 18, 2019 at 5:20 pm

What a bunch of ignorant BS! Interpreting the law — which has been the Supreme Court’s job since the Marlborough vs. Madison decision, early in America’s history — in fact “creates law,” since the language of Congressionally-enacted statutes cannot possibly address every single question that might later arise as to who to implement those statutes. And, it’s a totally straw-man argument that treating LGBTQ individuals equally would somehow — magically — empower them to force anti-LGBTQ individuals to do things that violated their consciences, much less their religious beliefs. To the contrary, equality only requires that — if someone provides a product or service to the public — they not deny that product or service to someone based on their gender, just as they, currently, cannot deny it to someone based on their race, age, national origin, disability or religion.

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Goober July 18, 2019 at 6:39 pm

The conflict there is between protecting the customer from religious discrimination, and protecting the business from religious discrimination. Sometimes, you *cannot* do both at the same time. That conflict is real, and it really pisses people off (on both sides).

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marie July 19, 2019 at 7:46 pm

The customer is likely to suffer far more from a religiously-motivated discriminatory incident as an overall impact.

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grannybunny July 19, 2019 at 8:02 pm

A business can’t really have a religion, but — even if it could — no one is attempting to discriminate against a business based on its alleged “religion.”

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MariaRose July 18, 2019 at 6:55 pm

Making a cake is not just mixing ingredients together but to make them both tasty and looking awesome. Decorating cakes is a learned skill, like a trade skill, and goes hand in hand with making tasty cakes. If you ever watch those cake/pastry shows, you would understand. That said, a successful cake show grows its business by referrals, not just walk-in customers and most have a website and booklets in-house showing past accomplishments. Whenever one orders from a cake shop for the first time, there is a discussion about the various items-type of cake, filling, icing, and decorations needing to be designed. Just like there are molds for candy and cake that are shaped into porno items, only some shops will openly make these. To force an owner to make something they feel is offensive when there are other options (places) available is really pushing the point as these can be brought separately and placed on the cake easily, especially when the reason for going to this specific shop was the desire to get the best cake (both in look and tasty). In the case against the religious cakemaker being sued for refusal to make the cake, the problem wasn’t in making the cake but the requested decoration and the customer would not even consider alternate options to get cake and self add requested decorations. Customers are not always right (despite the push) because too many are overdemanding just to get over by complaining.
Having specific religious beliefs do affect how one does business. The USA has a long history of how various Christain and Jewish beliefs affect how a community interacts with others. That right to freedom to religious beliefs is just as important as all people are entitled to be treated equally but that also means you, as an individual, can’t force someone to totally accept your position, you can only tolerate. Tolerate does not equal forcing the other to do as you wish and if they don’t, you don’t have the right to force the business to close because they don’t do as you wish. There’s always another business place to go. Businesses that deal with the public only has to offer services equally that they CAN perform without prejudice to their beliefs, age, gender, race, national origin, disability. The customer has no right to retaliate with prejudice.

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Stephanie July 18, 2019 at 9:06 pm

If a cake shop doesn’t use porno molds, they are not required to suddenly use them just because a customer requests. (Also, can we stop using porno as a comparison case for sexual orientation?) Similarly, if a cake shop offers wedding topper figures that are purchased in a set (groom & bride), it’s fine to say that you don’t offer alternate sets (groom & groom). It’s fine to say you won’t put particular words/phrases on any cakes. But to pretend that swirls, pearls, flowers, generic messages (e.g. “Love is All You Need”), etc. are different when you put them on a cake for a same sex wedding than when you put them on a cake for an opposite sex wedding is silly and discriminatory.

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grannybunny July 19, 2019 at 7:58 pm

In the Masterpiece Cakeshop case, the plaintiffs didn’t even get to the point of requesting a specific cake or decoration. As soon as the employee found out the genders of the betrothed, he rudely rejected their business.

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grannybunny July 19, 2019 at 8:00 pm

Gee, these are the same arguments that Woolworths made against serving Black customers at their Deep South soda fountains back in the day. I guess discrimination never gets old.

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Kelly July 18, 2019 at 7:54 pm

I disagree with you on how the courts should not interpret “sex” discrimination to include LGBTQ discrimination, namely because the Supreme Court has already ruled that discrimination based on sex stereotyping is covered (Price Waterhouse v. Hopkins, back in 1989). Discrimination against someone because of the sex of their sexual partner, when you would not do so if they were of the opposite sex, sounds like sex stereotyping to me. With transgender people they’d probably get only “partial” protection though with that precedent though (i.e. can’t discriminate against them because they express themselves in ways not typical of the birth-assigned gender, but probably not if they want to use the restroom of their choice or require that insurance cover transition-related procedures).

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Kelly July 18, 2019 at 7:54 pm

Sorry about “though” twice.

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LH HOLDINGS July 18, 2019 at 9:52 pm

I’m not one for a slippery slope argument but how is discriminating on the basis of sexual orientation any different from discriminating based on race? Those people that believed that their religion dictate that whites and blacks is don’t mix is the same arguments people are using for not providing services for homosexuals. Race and sexuality are things that cannot be changed and should therefore not be discriminated against. If you don’t want to provide basic services for the public, then don’t, but flour, butter, and sugar does not an endorsement of a particular lifestyle make.

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Mr. T July 19, 2019 at 5:15 pm

If your religion says you can’t serve certain people, that’s an issue with your religion. I do not want religious law or doctrine to trump civic law. None of my christian friends agree on religious doctrine, yet we all figure out a way forward. I disagree with most of my neighbors’ religious views, yet we find a path forward. Your inability to discriminate against others because of how religious leaders interpret your faith is not my issue.

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CEMgr July 19, 2019 at 8:58 pm

According to Suzanne, “….the Equality Act removes protections for people who have deeply held religious beliefs that conflict with homosexual behavior. Remember, Title VII also held religion as a protected class, and this will come into conflict.

“The Equality Act would force you to ‘bake that cake.’ Or press you into performing a medical procedure that you think is immoral or inappropriate for the patient. And that’s a problem…”

Should “deeply held” religious beliefs trump legal protections against discrimination? Suzanne, you are saying that if someone has a prejudice against homosexuals that they can plausibly trace to the teachings of a religion, they should be able to exercise that prejudice and exclude the homosexual person from being served at a business, correct? Does this only apply to homosexuality or does it apply to racial or gender discrimination as well?

I have long had deeply held beliefs – we can think of them as my “religion” – that to privilege “religious” beliefs above any other beliefs is simply wrong, and that to force religious beliefs on others is immoral. So by your reasoning, I should be able to deny my business services to anyone who holds, or appears to hold, anti-LGBTQ beliefs? Don’t get me wrong – if I ran a bakery, I would serve all paying customers equally. If someone showed up asking for a cake for a ceremony that I thought was idiotic and wrong, like a father/daughter chastity sealing or something like that, I might inwardly roll my eyes, but I WOULD bake that cake. I don’t found my identity on a list of people I choose to exclude from commerce or society or otherwise denigrate.

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Streb Lovell July 23, 2019 at 12:04 pm

I have a problem with the article, because it doesn’t mention anything about gay couples paying taxes, which of course then pays for the services the cake baker’s business enjoys (firefighting, police, etc.). Big difference with setting up a shop in a town and being a freelancer based abroad.

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