LC: :9. /2/3: ¢#?7_-5:/3 R 877593 A CRS FEPORT FOR CONGRESS V _ x flsiif‘ ~ 9 » My 5 L; ,,, {J .. 1 7 “AN ymi’-:7 v"$~‘ I “I P W‘: {ha} . ‘ “ ,2: ,5" Q7». aux” ’* L“-../S E-._i-4 L E mi: 4 3 (TA I 1 1 ‘ ' Y i . N ' i K L I r. 77 I 1 F 7;‘? ‘r ‘v'- J _ "4. .1. " ‘ \iV:\,~[}iE*L\l- ,; E. 3 1 *~ HOMOSEXUAL RIGHTS: LEGAL ANALYSIS OF H.R. 709/S. 461+, THE "CIVIL RIGHTS AMENDMENTSS ACT OF 1987" I 60% 190 f ,0 , 1! W 40 0’?/1 6405,’. K 0 Charles V. Dale iii’/73$ /?/ 0'9 Legislative Attorney I ASZIO/’ ‘9o.9¢ American Law Division Qfly Q%%} I 1, Lfifl,é¢?. 30 '98 September 18, 1987 mbla gm nivers issou lllll W "IIIIIT O10-103940l2 ' uumi The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providing information at the request of committees, Mem- bers, and their staffs. The Service makes such research available, without parti- san bias, in many forms including studies, reports, compila- tions, digests, and background briefings. Upon request, CRS assists committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service’s senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. HOMOSEXUAL RIGHTS: LEGAL ANALYSIS OF H.R. 709/ s. 464, THE "CIVIL RIGHTS AMENDMENTS ACT OF 1987" There are presently no federal statutory protections, in the civil rights laws or otherwise, that specifically prohibit discrimination against homosexuals. Indeed, the "sex" discrimination ban of Title VII of the 1964 Civil Rights Act and related federal equal employment opportunity laws have uniformly been interpreted by the courts to reach only "gender-based" discrimination, not sexual orientation or practice. As in previous years, however, bills currently before the Congress would expand coverage of the federal civil rights laws to deal with this situation. H.R. 709 and S. 464, companion measures introduced by Representative Weiss and Senator Cranston for themselves and numerous co-sponsors, propose to amend the 1964 and 1968 Civil Rights Acts by adding "affectional or sexual orientation" to the list of classes already protected by those laws. Thus, as defined by the bills, discrimination based on homosexuality, heterosexuality, and bisexuality would be prohibited along with race, sex, religion or national origin in the operation of public facilities or accommodations, federally assisted programs, residential housing, and the enforcement of equal employment oppontunity. The effect of these amendments in relation to current law is the subjectiof this report. PUBLIC FACILITIES Section 2 of the bills would amend Title II of the 1964 Civil Rights Act to secure "[a]ll persons," regardless of sexual orientation, "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and "CRS-2 accommodations of any place of public accommodation,‘ as thereafter defined by the Act. Currently, Title II prohibits discrimination because of "race, color, religion, or national origin” as to four specific categories of "public accommodation" if their "operations affect commerce, or if discrimination or 1 Thus, covered segregation by it is supported by $tate action." "establishments" include 1) "any inn, hotel, motel, or other establishment which provides lodging to transient guests," 2) "any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises,. . .or any gas station," 3) "any motion picture house, theatre, concert hall, sports arena, stadium or ' and 4) any "captive" other place of exhibition or entertainment,‘ establishment, that is, one "physically located" within the premises of a covered establishment, or conversely, within the premises of which a covered establishment is located. There are, however, two major exemptions to Title II coverage for owner occupied lodging establishments containing no more than five rental units and any "private club or other establishment not in fact open to the public." Other limitations on the scope of Title II coverage have emanated from judicial construction of the statute. For example, in Bridges v. Pittsburgh. 2 the district court held that a public radio Community Broadcasting Corp., station was not a public accommodation for purposes of the statute, either as to the use of the radio waves or access to its physical facility. Similarly, while food establishments are covered, Title II does not apply to bars and 1 42 u.s.c. 2000a et seq. 2 491 F. Supp. 1330 (W.D.Pa. 1980). CRS-3. taverns where the sale of intoxicating beverages is the primary business.3 The phrase "selling food for consumption on the premises" may exclude from coverage of the act any facility engaged solely in take-out business, although this issue was not resolved in the only case to address it." "Place of " on the other hand, has been construed to run the exhibition and entertainment, gamut of sports and recreational facilities, including amusement parks, bowling alleys, bathing beaches, pools and skating rinks, golf courses, camps, and health spas, to name a few. Moreover, under the "captive" facility doctrine, as interpreted in Daniel v. Paul,5 once an establishment, like a snack bar, is covered, the entire recreational facility of which it is a part is automatically covered and must be operated on a nondiscriminatory basis as to all its activities. Presently, only two states have civil rights statutes that explicitly protect lesbians and homosexuals, while a few others do so in particulari situations. In addition, however, some states have enacted more general civil rights laws, codifying the common law "public interest business" doctrine, which may in some circumstances limit a business’ right to refuse service to anyone willing to pay." Experience under a California law may be indicative. In the early 1950s, that state's Board of Equalization indefinitely suspended the licence of the Black Cat, a San Francisco gay bar. The 3 E.g., Cuevas v. Sdrales, 344 F.2d 1019 (10th Cir. 1965), cert. denied, 382 u.s. 1014 (1966). 4 Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941 (D.S.C. 1966), rev'd, 377 F.2d 433 (4th Cir. 1967), aff'd, 390 U.S. 400 (1968). 5 395 u.s. 298 (1969). 6 See, e.g., Cal. Civ. Code 51, 52 (Deering 1971); Mass. Gen. Law Ann. ch. 272, §98; Mich. Comp. Laws Ann. §7SO.146; Mo. Ann. Stat. §3l4.0l0; N.Y. Civ. Rts. Law §40. CRS-4 California Supreme Court held that the state's general civil rights law, which at the time gave "all citizens" equal access to businesses within the state, prohibited the owner from excluding patrons because of their sexual orientation.7 The ruling was based not on a theory that lesbians and homosexuals were a protected class but simply that the statute mandated a duty of equal access for all persons. Over the years, the California state courts have several times applied the law to lesbian and homosexual exclusion cases, despite the later addition of a list of protected classes which does not mention sexual orientation. In 1959, the California statute was amended to read as followst All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Thereafter, the California Supreme Court in two cases rejected the argument that the 1959 amendments had removed sexual orientation discrimination from the purview of the statute, holding that the included list of protected classes was merely illustrative of the law's scope, not a limitation upon it.8 While not controlling outside California, these interpretations may be persuasive authority in the courts of other jurisdictions with similar laws, and even where the common law "public interest" business doctrine is still enforced. Suffice it to say that whatever the scope of these state laws, the amendments to Title II proposed by the bills would enact far broader protections against "sexual orientation" discrimination than prevail currently 7 Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969 (1951). 3 See, Marina Point Ltd. v. Wolfson, 30 Cal.3d 721, 640 P.2d 115, 180 Cal. Rptr. 469 (1982); In Re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24 (1970). CRS-5 at the state or local level. As it now stands, Title II constitutes a comprehensive national ban on discrimination in a wide variety of public accomodations, subject only to narrow exceptions for "bona fide" private and small owner-occupied lodging establishments. It is enforceable by: federal court action for injunctive relief by the aggrieved party or the Attorney General in so-called "pattern or practice" cases. The full panoply of protections against discrimination on racial, ethnic, and religious grounds under current law would be extended to "affectional or sexual orientation" if the bills become law. PUBLIC FACILITIES Section 3 of the bills would amend Title III of the 1964 Act9 to authorize the Attorney General to bring suit in cases where persons are denied equal use of public facilities for reasons of "affectional or sexual orientation." Title III at present authorizes suits to combat discrimination in the use of any public facility, other than public schools or colleges, that are "owned, operated, or managed by or on behalf of any State or subdivision thereof" because of race, color, religion or national origin. Although there has been a relative dearth of litigation under Title III, these provisions have 10 and would likewise apply been applied to discrimination in jails and prisons, to parks, beaches, libraries, or any other facility owned by the states or localities for the benefit of the public. The proposed amendments, however, would not affect the exclusion from this prohibition of discrimination in education. 9 42 u.s.c. §2000b(a). 10 See, U.S. v. Wyandotte County, 480 F.2d 969 (10th Cir. 1973), cert. denied, 414 U.S. 1068 (1974). CRS'6 FEDERALLY ASSISTED OPPORTUNITIES Section 4 of the amendments would add ”affectional or sexual orientation" to Title VI of the 1964 Civil Rights Actll which presently bars discrimination because of race, color, or national_origin in any "program or activity"—that receives federal financial assistance. Under Title VI, the grantmaking agencies of the federal government are directed to issue rules and regulations to enforce this requirement and to secure compliance by voluntary means, negotiation and the like, if at all possible. As a final resort, however, where voluntary compliance cannot be achieved, the agency may terminate assistance to the program after notice, a hearing, and an express administrative finding of noncompliance.12 Or, the matter may be referred to the Department of Justice for court enforcement. Traditionally, Title VI has been applied to a broad range of federally assisted programs--whether conducted by state or local governments or private organizations--and reaches both primary and secondary recipients of federal aid who discriminate in providing benefits, services, or funds to intended program beneficiaries. Thus, federally aided programs as diverse as state and local housing and redevelopment projects,13 public and private hospitals,l4 and a state cooperative extension servicels have been subjected to Title VI coverage. A private recreation association that received a direct loan from the U.S. 11 42 u.s.c. §2000d et seq. 12 42 u.s.c. §2000d-1. 13 Hills v. Gautreaux, 425 u.s. 234 (1976). 14 Rackey v. Board of Trustees, 238 F. Supp. 512 (D.S.C. 1965); NAACP v. Wilmington Medical Center, 599 F.2d 1247 (3d Cir. 1979). 15 Wade v. Mississippi Cooperative Extension Service, 424 F. Supp. 1242 (N.D.Miss. 1975). CRS-7 Farmers’ Home Administration was also found to have violated the act for denying membership to persons solely because they were black.l6 A primary focus of Title VI enforcement has been on education, however, with public and private institutions at the elementary, secondary, and college level that receive federal money required to avoid racial discrimination in the 17 admission and treatment of students. Private higher educational institutions have even been held subject to Title VI on the basis that their 18 students received Veterans’ educational assistance or Basic Educational Opportunity (or so-called "Pell") Grants.19 However, considerable uncertainty as to the reach of Title VI, and certain other federal statutes that bar discrimination in federally assisted programs, was engendered by the 1984 Supreme Court ruling in Grove City College v. §gll.2O Traditionally, the federal government had asserted broad authority to enforce nondiscrimination with respect to all the operations of an aided institution when federal funds supported any of its activities. Accordingly, the Title VI regulations adopted an "institution-wide" coverage formula based n21 on a broad interpretation of "program or activity. In Grove City College, however, the Supreme Court ruled that the sex discrimination prohibition in 16 Hawthorne v. Kenbridge Recreation Ass'n, 341 F. Supp. 1382 (E.D.Va. 1972). 17 See, e.g., Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972), aff'd as modified, 480 F.2d 1159 (D.C.Cir. 1973); Adams v. Weinberger, 391 F. Supp. 269 (D.D.C. 1975). 18 Bob Jones University v. Johnson, 396 F. Supp. 597 (D.S.C. 1974), aff'd, 529 F.2d 514 (4th Cir. 1975). 19 Grove City College v. Bell, 465 u.s. 555 (1984). 20 Id. 21 See, e.g., 45 C.F.R. 80.1 (l986)(HHS regulations). CRS-8 22 which was modelled directly on Title IX of the 1972 Education Amendments, Title VI, applied only to the particular program or activity that receives federal funds, not to the entire institution. One effect of the ruling, its critics note, has been a substantial retrenchment in government enforcement efforts under Title VI and related statutes. Congress responded this year as 23 titled the "Civil Rights last with a proposed legislative resolution, Restoration Act of 1987," a version of which has been reported by Senate Labor and Human Resources Committee. These bills would overturn the Grove City College case by amending Title VI and Title IX, and two other affected laws, so as to define "program or activity" to include the state or local governmental department or agency, public or private school or school system, or other entity through which federal financial assistance is distributed to its "ultimate beneficiaries." Current agency regulations under Title VI provide that in addition to avoiding practices that discriminate on prohibited grounds, federal aid recipients "must take affirmative action to overcome the effects of prior 24 Similarly, discrimination" in the administration of federally programs. agency regulations commonly state that even in the absence of past discrimination, program sponsors "may take affirmative action to overcome the effects of conditions which result in limited participation" by persons of a particular race, color, or national origin. In "affectional or sexual orientation" cases, however, the bills would qualify these regulations with the limitations on the use of statistical evidence and quota remedies, 22 20 U.S.C. §l68l et seq. 23 s. 557, H.R. 1214, 100th Cong., lst Sess. 24 See, e.g., 45 C.F.R. §80.3(b)(6)(i) (HHS Regulations). CRS-9 discussed, infra. Of course, the outcome of the legislative debate on Grove City College will also directly affect Title VI enforcement of nondiscrimination because of "affectional or sexual orientation" if H.R. 709/S. 464 become law.r INTERVENTION AND PROCEDURE Section 6 of the bills would amend 42 U.S.C. 2000h-2 to permit the Attorney General to intervene on behalf of the United States government in any case commenced in any federal court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment on account of "affectional or sexual orientation" if the suit is deemed to be of general public importance. That section presently authorizes government intervention for claims of denial based on race, color, religion, sex, and national origin. HOUSING SALE, RENTAL, FINANCING, AND BROKERAGE SERVICES Section 7 of the bills would amend the fair housing provisions of Title VIII of the 1968 Civil Rights Act25 to bar discrimination in the sale, rental, and financing of most public and private housing, and in the provision of related brokerage services, on the basis of "affectional or sexual orientation." Presently, Title VIII makes it unlawful to refuse to sell or rent a dwelling after receiving a bona fide offer, or to refuse to negotiate after the receipt of such an offer, because of race, color, sex, religion, or national origin of the prospective buyer; to discriminate against any persons on such grounds in the terms of a sale or lease agreement; to advertise in such a manner as to indicate a discriminatory preference; or to represent to any person for discriminatory reasons that a dwelling is not available when in fact 25 42 u.s.c. §§3604—3606. CRS-10 it is available. The Act also makes it unlawful to engage for profit in N26 "blockbusting activities, and prohibits real estate brokers and associations 27 from discriminating in access to their services or facilities. In addition, ,discrimination is prohibited in the granting of loans.or other financial % other. assistance and in fixing the terms of such loans when the funds so acquired are to be used for purchasing, constructing, improving, repairing or maintaining a dwelling.28 All these same practices directed against a person because of his or her "affectional or sexual orientation" would be prohibited by the bills. Unaffected by those bills, however, are two major exceptions to Title VIII coverage that would be applicable to sexual orientation cases as well. The first exclusion granted by the act is for the single-family home which is sold or rented by the owner, provided the latter neither owns nor has the right to proceeds from the sale or rental of more than three such single-family dwellings at any one time. An owner who is not residing in the house, or who is not the most recent resident of the house at the time of sale, is allowed the exclusion for only one sale during any two-year period. The exclusion is also unavailable if the owner uses the services of a broker or realtor or if he advertises in a discriminatory manner.29 The other Title VII exemption, or so- called "Mrs. Murphy's boardinghouse" exception, applies to an owner-occupied dwelling in which fewer than five families reside independently of each 30 25 42 u.s.c. §3eo4(b)-(e). 27 Id. 23 42 u.s.c. §3605. 29 42 u.s.c. §3603(b)(1). 3° 42 u.s.c. §3603(b)(2). CRS-ll Responsibility for overall administration of Title VIII rests with the Department of Housing and Urban Development (HUD) whose enforcement authority is presently limited, however, to the investigation and settlement of discrimination complaints by means of "conference, conciliation, and persuasion." In other words, HUD has no authority to require the cessation of discriminatory conduct or even to seek judicial relief of fair housing violations. Instead, judicial enforcement must be triggered by private litigation, with Justice Department suits authorized where there is a "pattern or practice" of housing discrimination or in cases of "general public importance."3l However, a current Senate bill, S. 558 or the "Fair Housing Amendments Act of 1987," would amend the present law to arm HUD with additional administrative enforcement authority, namely the power to issue cease-and- desist orders and damage remedies through an Administrative Law Judge procedure. The bill would also extend coverage of the federal fair housing law to classes of individuals not presently protected, that is, those alleging housing discrimination because of "handicap" and "familial status," The amended Title VIII coverage proposed by S. 558, which is scheduled for hearings in the fall of 1987, could in some circumstances interact with, and possibly even strengthen, the ban on "affectional or sexual orientation" under H.R. 709/S. 464. For example, while homosexuals are a high risk AIDS group, it is unclear whether a statutory ban on sexual orientation discrimination would per se render illegal a policy of refusing to sell or rent housing to AIDS victims, or those testing positive for AIDS antibodies. Recently, however, the U.S. Supreme Court has held that a contagious disease may be a "handicap" under 31 42 U.S.C. §36l3. CRS-12 the 1973 Rehabilitation Act so that an infected person is protected by that law 32 Applying the if "otherwise qualified" for the federally assisted benefit. same rationale, it is arguable that an AIDS victim may be protected from discrimination in housing by S. 558, but possibly not H.R. 709/S. 464 unless. the courts apply a "disparate impact" analysis.33 Similarly, by adopting a "families only" rental policy, a landlord may legally be able to refuse rentals to homosexuals and lesbians under H.R. 709/ S. 464 but probably not the "marital status" protections of S. 558. Suffice it to say, while broadly conceived, there may yet be limits on the former bill's proscriptions on "affectional or sexual orientation" discrimination in housing. EQUAL EMPLOYMENT OPPORTUNITIES Section 5(a) of H.R. 709/S. 464 would amend §703 (a) to (e) of Title VII of the 1964 Civil Rights Act, which define those practices and policies of an employer, employment agency, or labor organization that constitute an "unlawful employment practice" forbidden by the Act, to include discrimination because of "affectional or sexual orientation" on the same basis as "race, color, religion, sex, or national origin" already covered.34 Section 706(g) of the Act35 would likewise be amended to authorize the courts to order "affirmative ' including reinstatement, hiring, or backpay relief, to remedy proven action,’ past discrimination on the basis of affectional or sexual orientation as in these other Title VII contexts. The federal government would also be required 32 School Board of Nassau County v. Arline, 107 S.Ct. 1123 (1987). 33 c£., Resident Advisory Council v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 u.s. 908 (1978). 34 42 u.s.c. §2000e-2. 35 42 u.s.c. §2000e-5(g). CRS-13 to refrain from discrimination because of affectional or sexual orientation in competitive positions by the bill's amendments to §7l7.36 Generally, Title VII prohibits all forms of discrimination in the employment and preemployment relationship, including hiring, discharge, promotion, layoff and recall, compensation and fringe benefits, classification, training, apprenticeship, referral for employment, union membership, and all other "terms, conditions, and privileges of employment." Private employers are covered if they employ fifteen or more employees, as are state and local " "governmental agencies," and "political subdivisions." Subject "governments, to certain exceptions, discussed igfga, the effect of the bill would be to extend to persons on the basis of their "affectional or sexual orientation" the same panoply of protections against discrimination enjoyed by women and minorities under Title VII in both the public and private employment setting. Note that the definitional section of both the House and Senate bills would apply not only to homosexuals, lesbians, and bisexuals traditionally identified with the "Gay Rights" movement, but heterosexual individuals as well. The term "affectional or sexual orientation" is defined by §9 of the bills to mean "male or female homosexuality, heterosexuality, and bisexuality by orientation and practice, by and between consenting adults." While this has implications for coverage of all the titles affected by the bill, its consequences may be most readily apparent under Title VII. Thus, just as an employer would be prohibited from denying employment opportunities to members of the former groups, so would the employer, in preference for those individuals, be barred from discriminating against heterosexuals. For example, the proprietor of an establishment that caters primarily to gays, such as a 35 42 u.s.c. §2000e-16. CRS-.14 bar, nightclub, or restaurant, would not be permitted by the bill to exclude heterosexuals from consideration for employment. Another issue may arise as to transvestites and transsexuals. While in other Title VII contexts the courts have sustained reasonable employer rules regarding appearance and grooming,37 transvestites may pose a closer question because of the reference in §9 of the bill to "orientation or practice.", Similarly, although transsexuality, like homosexuality itself, has uniformly been held to fall outside the purview of Title VII,38 it is uncertain whether the same conclusion would pertain if the bill were to become law. The bills preserve, however, certain exceptions to present Title VII coverage as applied to "affectional or sexual orientation" cases. First, just 39 to as employers and unions are permitted by §§703(e) and 704(b) of the Act discriminate on the basis of religion, sex, or national origin where these factors are a "bona fide occupational qualification" (bfoq) for the particular employment, the same would apply to preferences based on affectional or sexual orientation. Similarly, current exceptions in §703(h)40 for discrimination that results from the operation of a "bona fide" merit or seniority system, or the application of professionally developed ability tests "not designed, intended, or used" to discriminate would apply to sexual orientation cases.. Finally, another Title VII provision which makes an exception for the refusal to hire persons deemed "security risks" into sensitive government and private 37 E.g., Boyce v. Safeway Stores, 351 F. Supp. 402 (D.D.C. 1972). 38 E.g., Smith v. Liberty Mutual Insurance Co., 395 F. Supp. 1098 (N.D.Ca. 1975), aff'd 596 F.2d 325 (Sth Cir. 1978). 39 42 u.s.c. §§2oooe-2(e>, 2oooe—3(b). 40 42 u.s.c. §2000e-2(h). CRS-15 industry positions would be unaffected.41 In particular, the inclusion of affectional or sexual orientation within the bfoq exception could have an impact on the actual application of the bills to employment discrimination against homosexuals. That section presently operates to validate an otherwise unlawful practice where the employer is able to show that the job in question requires a worker of a particular religion, sex, or national origin and that requirement is "reasonably necessary to the "42 As noted, the normal operation of that particular business or enterprize. bills would extend this limited exception to Title VII coverage to those instances as well where sexual orientation is a bfoq. Under Title VII, the bfoq exception has most often been applied in the sex discrimination context with the Equal Employment Opportunity Commission (EEOC) and the courts generally agreed that it is to be narrowly construed. In Diaz v. Pan American World Airways43 the U.S. Court of Appeals for the Fifth Circuit held that "discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively." In an earlier case, Weeks v. Southern Bell Telephone and 44 Telegraph Co., the same court ruled that an employer could rely on the bfoq exception only by proving "that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely or efficiently the duties of the job involved." The Supreme Court has affirmed this view, finding that "the bfoq exception was in 41 42 u.s.c. §2000e-2(g). 42 42 u.s.c. §§2000e-2(e), 2000e-3(b). 43 442 F.2d 385, 388 (5th Cir.), cert. denied, 404 u.s. 950 (1971). 44 408 F.2d 228, 235 (5th Cir. 1969). CRS-16 fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex."45 While it is difficult to predict how the courts might apply the bfoq exception in sexual orientation cases, a possible analogy may be found in the still developing constitutional law on the employment rights of homosexual public school teachers. The reason often cited by school administrators for the refusal to hire homosexuals in these cases is the belief that young people are likely to be influenced by the values, beliefs, and "lifestyles" of their 46 This argument, teachers who are homosexual and not proper role models. suffice it to say, has received a mixed reception in state and federal courts; but there has been some movement to a rule requiring a "nexus" between the teacher's conduct and his or her job performance. However, the determination has frequently turned on whether the individual is an avowed homosexual. Thus, where the homosexual act is an isolated one, the nexus required for 45 Dothard v. Rawlinson, 433 u.s. 321, 334 (1977). 46 See, e.g., Acanfora v. Board of Education, 359 F.Supp. 843, 856 (D.Md. 1973), aff'd on other grounds, 491 F.2d 498 (4th Cir. l974)(noting that speech by a teacher promoting legal rights for homosexuals may not be protected because it "does not serve the purposes of sexual adjustment, maturation, and student-parent relationships in the educational context"); McConnell v. Anderson, 316 F.Supp. 809, 814 (D.Minn. 1970), rev'd, 451 F.2d 193 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (l972)(noting in justification of its holding that plaintiff, an outspoken homosexual, had been denied employment in violation of due process, that "[p]laintiff's position will not expose him to children of tender years who conceivably could be influenced or persuaded to his penchant"); Gish v. Board of Education, 145 N.J.Super. 96, 104-05, 366 A.2d 1337, 1342 (App.Div. 1976), cert. denied, 434 U.S. 879 (1977)(noting that one of the responsibilities of the school board is "to protect the students from a significant danger of harm, whether it be physical--or otherwise."); Gaylord v. Tacoma School District, No. 10, 88 Wash. 2d 286, 298, 559 P.2d 1340, 1347 (en banc), cert. denied, 434 U.S. 879 (1977)(". . .Gaylord's homosexual conduct must be considered in the context of his position of teaching high school students. Such students could treat the retention of the high school teacher by the school board as indicating adult approval of his homosexuality."). Norton v. Macy, CRS-17 dismissal has not been found;47 conversely, where the individual has publicly acknowledged his or her homosexuality, job impairment will more likely be found.48 Whether the courts would incorporate this "nexus" test via their interpretation of the bfoq exception is uncertain, but it does find a parallel 49 In any event, it appears that the denial in the federal civil service cases. of employment to homosexual school teachers, or to homosexual applicants for other positions, may not be prohibited by the proposed amendments to the Act where the employer can show that there is a "factual basis for believing" that homosexuals "would be unable to perform safely or efficiently the duties of the job involved." The bill would also add "affectional or sexual orientation" as a protected class to §7l7 of Title VII, which at present prohibits the federal government from discriminating on racial, religious, or sexual grounds against employees or applicants for employment in executive agencies and departments, the Library of Congress, and those units of the legislative and judicial branches "having positions in the competitive service." Under current law, the nexus test of S0 requiring a reasonable connection between forbidden conduct and the efficiency of the service, has become the prevailing rule in federal 47 See, e.g., Morrison v. State Board of Education, 1 Cal.3d 214, 416 P.2d 375, 82 Cal.Rptr. 175 (1969); Board of Education v. Jack M., 19 Cal.3d 691, 566 P.2d 602, 139 Cal.Rptr. 700 (1977). 48 See, e.g., Gaylord v. Tacoma School District No. 10, supra n. 46; McConnell v. Anderson, supra n. 46; Rowland v. Mad River Local School District, 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009 (1985). 49 See, Norton v. Macy, 417 F.2d 1161 (D.C.Cir. 1969)(Civil Service Commission prior policy of automatically excluding homosexuals from federal service violates due process where this is "no reasonably foreseeable, specific connection between. . .[the homosexual] conduct and the efficiency of the service.). 50 Note 49, supra. CRS-18 ' for civil service cases and federal regulations for evaluating "suitability' federal employment. The OPM regulations establish a single standard for "suitability disqualifications" based on a federal applicant's or employee‘s sexual conduct, be it homosexual or heterosexual. Thus, a federal agency may hire or retain homosexual individuals so long as they do not engage in "criminal, dishonest, infamous, or notoriously disgraceful conduct," have not made fraudulent or intentionally false statements in connection with their employment, have not engaged in misconduct in previous employment, have not refused to furnish testimony required by law, are not drug users or alcoholics, and are not 51 otherwise statutorily unfit for federal employment. Deleted from the inventory of factors to be considered a basis for disqualification is the "immoral conduct." In determining reference in earlier regulations to suitability, OPM is to consider the extent to which "disgraceful conduct" or other factors that could be cause for dismissal or denial of employment is actually "pertinent" to the position, including the "sensitivity" of the position which the person holds or for which he or she is applying. Accordingly, a person's sexual conduct remains a consideration pertinent to suitability for federal service. But, it appears, a person may be disqualified for employment only where that conduct is "criminal, dishonest, ' or the person makes a fraudulent infamous, or notoriously disgraceful,‘ employment-related statement concerning it, and such other factors as the sensitivity of the job and recency of the offending conduct are considered. Of course, since almost half the states make consensual sodomy between consenting adults a criminal offense, a policy affirmed as constitutional by 51 5 C.F.R. § 731.202 (1987). CRS-19 52 these regulations may not fully protect federal employees the Supreme Court, in all states from discrimination because of affectional or sexual orientation. Moreover, the standards for security clearance determinations are far more restrictive, authorizing a clearance only when "clearly consistent with the n 53 national interest. Specifically included among the criteria that may disqualify a person for a security clearance under current Defense Department 54 or facts providing regulations are evidence of "sexual perversion," reasonable cause to believe that the applicant "may be subject to coercion, influence, or pressure which may be likely to cause action contrary to the national interest."5S Because the OPM regulations provide considerable protection for federal employees and applicants from adverse personnel actions on account of their homosexuality, at least where military and national security considerations are not involved, H.R. 709/S. 464 may have less impact here than in the private or state and local employment settings. Note, however, that because the bills are directed to homosexuality "by orientation or practice," they might even protect certain conduct of a "notorious" or public nature that falls outside the protection of the regulations. Similarly, the protection afforded by the bill would not be limited or qualified by state sodomy laws, as is potentially true of the regulation by its own terms. Because the bills preserve the Title VII national security exception, they do not affect security clearance procedures 52 Bowers v. Hardwick, 106 s.ct. 2841 (1985). 53 32 C.F.R. §1s5.4 (1987). 54 1a., §1S5.5(h). 55 Id., §l5S.5(k). CRS-20 in any way.56 Finally, note that as applied to federal employment, Title VII has generally been limited to civilian employees, including those of the military departments, but not the uniformed armed services. Thus, the bills would not affect operation of military regulations that generally mandate separation of homosexual personnel.57 RULE OF INTERPRETATION The scope of protection against discrimination based on affectional or sexual orientation is narrowed somewhat by the "rule of interpretation" in §l0 of the bill regardingthe use of statistical evidence and "quota" remedies. Briefly, this section would add restrictions, without direct parallel in current law, forbidding the use of such remedies and evidence in sexual orientation cases. Thus, §lO of the bill states: No amendment made by this Act shall be construed to permit or require 1 (1) the determination that discrimination exists to be based on any statistical differences in they 56 Note that the federal courts have generally been reluctant to disturb or interfere with administrative decisions to refuse or terminate federal employment for national security reasons. For example, the U.S. Supreme Court has before it this term a case which considers whether the decision of the CIA Director to discharge an alleged homosexual employee under the 1947 National, Security Act need be justified by a statement of reasons or is judicially reviewable under the Administrative Procedure Act. Doe v. Casey, 796 F.2d 1508 (D.C. Cir.), cert. gr. sub nom. Webster v. Doe, No. 86-1294, 55 U.S.L.W. 3820 (S.Ct. 6/9/87). But, cf., High Tech Gays v. Defense Industrial Security Clearance Office, 167 DLR D-1 (Aug. 31, 1987)(Federa1 district court holds that the Equal Protection Clause and First Amendment bar government policy of subjecting gay and lesbian applicants for security clearance to more intense investigation of sexual behavior than heterosexuals. The government cannot presume that all lesbians and gay men "are unstable, perverted, or prone to blackmail" but must treat all applicants alike with respect to security investigations.). 57 See, e.g., Dronenburg v. Zech, 741 F.2d 1338 (D.C.Cir. 1984); Beller v. Middendorf, 632 F.2d 788 (9th Cir.), cert. denied, 452 U.S. 405 (1980); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984). CRS-21 incidence of persons of a particular affectional or sexual orientation in the general population as opposed to the activity wherein such discrimination is alleged; or (2) the fashioning of any remedy reqniring.any sortiofi quota for the activity wherein such discrimination is alleged for persons of any particular affectional or sexual orientation. The significance of these limitations derive from court decisions and administrative rules under various of the affected civil rights laws, particularly Title VII, which recognize that statistical under-representation of women and minorities may be evidence of discrimination. Moreover, the defendant in "egregious" cases may be required to implement affirmative action remedies to benefit the entire protected class, relief that may take the form ” "quotas," and or other race-conscious of admission or hiring "goals, preference. While statistically based methods of proof and numerical or "quota" remedies have been sanctioned under both Title VI and the federal fair housing law, they are perhaps most common in the employment discrimination law. Under Title VII statistical evidence may be probative of discrimination in several respects. First, in a class action statistical evidence of the disproportionate impact of a specific employment practice on women and minorities has been held to be alone sufficient to establish a prima facie case of unlawful discrimination.S8 Second, minority or female under-representation in the employer's workforce, when compared to qualified candidates from these groups in the relevant labor area, may likewise be probative, particularly if supported by other direct and indirect evidence.59 Finally, statistical 58 Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975). 59 E.g., Teamsters v. United States, 431 U.S. 324 (1977). CRS-22 evidence has been held to be probative in rebutting an employer's defense against a charge of discrimination. That is, an employer can rebut a prima fggig case of discrimination by showing that the employment practice in question is job-related or a matter of business necessity. The complainant, in turn, can attempt to show that the employer's justification is merely "pretextual" based, inter alia, on statistical evidence of past discrimination.60 Similarly, over the last two terms alone, the Supreme Court has repeatedly affirmed the use of affirmative action remedies, whether voluntary or judicially decreed, by public and private employers. Even before the Court” spoke, all eleven U.S. Circuit Courts of Appeals had, in cases dating to the very inception of the 1964 Act, approved the use of race or sex "quotas" to remedy "historic," " egregious," or "longstanding" discrimination. This line of authority was ratified by the High Court in its recent rulings in Local 28, Sheet Metal Workers v. EEOC,61 which involved judicial imposition of a minority membership goal on a union with a well-established two decade history of 62 "contemptuous racial discrimination,‘ and United States v. Paradise, approving a federal district court order of temporary promotional quotas for blacks in the Alabama state troopers. Also last term, the Court in Johnson v. 63 Transportation Agency upheld a county's voluntary affirmative action policy of preferring women for promotions to job classification where they are 60 McDonnell Douglas v. Green, 411 U.S. 792 (1973); Albermarle Paper Co. v. Moody, supra n. 57. 51 106 S.Ct. 3019 (1986). 52 107 S.Ct. 1053 (1987). 53 107 S.Ct. 1442 (1987). CRS-23 traditionally under-represented, despite a district court finding of no past discrimination by the agency involved. However, these decisions make clear, such remedies are a "last resort," reserved for only the most extreme cases, afiizmmst be enfprcedlin a "flexible" and "temporary" manner, or as as "benchmark" of employer compliance "rather than as a strict racial quota." Note that the precise scope and effect of the §l0 restrictions may be open to some Qhestion. First, is it only the reliance on "statistical differences" per se to prove sexual orientation discrimination that is prohibited, or any and all use of such differences, whether as the sole or exclusive proof or merely supportive of other direct evidence? Also, the caselaw emphasizes that the relevant Title VII comparison is between the minority composition of the employer's workforce and that of the relevant labor area, not the "general population" as targeted by §l0. Accordingly, that restriction may have little actual impact of enforcement of the sexual orientation law. Finally, there is ' on the some basis in the caselaw for a distinction between remedial‘"quotas,' one hand, and less rigid "goals," and the like, on the other. Is the §l0 proscription on "any sort of quota" intended to reach all affirmative action remedies? These issues aside, the practical significance of the §lO limitations may be questioned for another reason. Unlike women or racial and ethnic minorities, homosexuals may not be readily identifiable as a class, and but for instances of voluntary disclosure, their "affectional or sexual orientation" may go unrecognized by the employer or the courts. Indeed, due to past or present societal attitudes, it is not unreasonable to assume that, in many instances, homosexual applicants or employees have not or will not freely acknowledge their status, and the employer may only infrequently be aware of CRS'24 the fact. Indeed, §ll of the bill itself seeks to affirmatively protect a person's right "[not] to disclose a personal sexual orientation." Accordingly, it might be extremely difficult, even without §10, to develop the kind of statistical proof of "historic" or "conspicuous" discrimination required by the courts to support class-based affirmative action, whether in the form of quotas, goals, or otherwise. “L/6L%Q£ba P é!,9$*3fir Charles V. Dale Legislative Attorney American Law Division September 18, 1987’ LIBRARY OF WASHINGTON UNIVERSITY ST. muss - M0.