United Airlines Runs Afoul of the 1964 Civil Rights Act
Intentionally Staffing an all LGBTQIA Flight Crew is a Step Backwards
Recently, United Airlines recently announced an all-LGBT+ flight crew on one of its flights from San Francisco to Sydney, Australia for “Pride in Partnership.”1 But, as it appears from the promotional video on Twitter, this was done intentionally, not simply a first-of-its-kind moment occurring organically on its own that United Airlines decided to celebrate.2 The promotional material includes footage of airplane mechanics intentionally painting a rainbow on the outside of the plane, a step that would have required some advance thinking. For its part, Virgin Australia, which partnered with United Airlines for the flight, deemed this a “Pride Flight”.3
This is not something anyone who believes in LGBTQIA civil rights should celebrate.4
By deciding to have an all-LGBTQIA flight crew, excluding any employee who was straight and non-transgender, United Airlines intentionally classified its employees by their sexual orientation and gender identity in making job assignments. This is extremely problematic because it is sexual orientation and gender identity discrimination in the workplace by United Airlines in violation of federal law, an interpretation of federal law the LGBTQIA community fought for and is currently relying upon to advance LGBTQIA rights.5
Title VII of the 1964 Civil Rights Act provides “It shall be an unlawful employment practice for an employer - . . . to discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”6 Moreover, an employer may not “limit, segregate, or classify his employees . . . in any way which would . . . adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”7
The “term ‘discriminates against’ refers to distinctions or differences in treatment that injure protected individuals.”8 And the “terms” and “conditions” do not just refer to contractual issues but to all areas of workplace treatment.9 The discriminatory practices are prohibited even if there is no economic loss to the employee.10 Moreover, “an unlawful employment practice” occurs when “race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”11
In other words, it’s not just hiring or firing employees on the basis of race, color, religion, sex, or national origin that Title VII forbids, but also the creation of any workplace practice that treats employees differently on the basis of race, color, religion, sex, or national origin.12
As the Equal Employment Opportunities Commission explains on its website, “It is illegal for an employer to make decisions about job assignments and promotions based on an employee’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers.”13
Moreover, “The law makes it illegal for an employer to make any employment decision because of a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment - however small.”14
Thus, could an airlines intentionally staff an all-black flight crew to celebrate Black History Month? No.15 Or intentionally staff an all-women flight crew to celebrate Women’s History Month? Again, no.
One might be wondering though. Does Title VII of the Civil Rights Act of 1964 apply though to sexual orientation and gender identity discrimination? It does.16
In the landmark decision of Bostock v. Clayton County17, the United States Supreme Court held that Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation and gender identity.18 Title VII prohibits employers from discriminating “because of sex”, which is interpreted as “by reason of” or “on account of” sex.19
As held by the Court, one cannot discriminate on the basis of sexual orientation or gender identity without taking one’s sex into account.20 Therefore, the Court concluded that one who intentionally discriminates on the basis of sexual orientation and gender identity intentionally discriminates on the basis of that individual’s sex in contravention of the law.21
While the Court acknowledged that prohibiting sexual orientation and gender identity discrimination in the workplace was probably an unintended consequence of the drafters of the law, the law’s plain statutory command and its precedents required the outcome.22
If the Civil Rights Act of 1964 protects LGBTQIA individuals from discrimination based on sexual orientation and gender identity, does that apply to discrimination against straight and non-transgender individuals?
The answer is yes, it does. The United States Supreme Court has explained that the 1964 Civil Rights Act “works to protect individuals of both sexes from discrimination, and does so equally.”23 An employer is not shielded from liability simply because the “employer may happen to favor women as a class.”24 Similarly, the prohibitions against racial discrimination apply with full force to protect whites.25 There is no language in Title VII or judicial precedent that would carve out an exception to allow for discrimination against straight and non-transgendered individuals.26
Does this mean then that companies cannot celebrate Pride Month or have LGBTQIA-employee affinity groups? No. Anyone can celebrate Pride Month, regardless of their sexual orientation or gender identity. Affinity groups that have all-comers policies are common because they don’t discriminate against others in and of themselves.27 However, treating individuals differently on account of their sexual orientation or gender identity in the workplace is prohibited.
United Airlines’ act is a step backwards. It ignores the recently won protections of legal equality for the LGBTQIA community, long deprived of equal justice under the law. Moreover, failure to adhere to the law jeopardizes its future enforcement. The protections against sexual orientation and gender identity discrimination are not within the text of the 1964 Civil Rights Act.28 We have not yet been able to enact federal legislation codifying this decision and Supreme Court precedents are not always permanent.
Fights for equality can be difficult, especially when they involve unpopular individuals or icky concepts. For example, in California, judges have discretion as to whether to place a criminal convicted of having sex with a minor on the permanent sex offender registry list when (1) the victim was at least 14 years old, (2) the offender was no more than 10 years older than the victim, and (3) the offender engaged in sex that would have otherwise been consensual if both parties were of the legal age of consent.
However, prior to 2020, this judicial discretion had only been allowed in cases of vaginal sex and did not apply to those convicted of anal and oral sex. Those convicted of anal and oral sex were automatically placed on the sex offender registry regardless of the case facts. Although this law was theoretically sexual orientation neutral, it had a discriminatory disproportionate impact on gay and bisexual men.29
As one might imagine, changing the law to punish illegal vaginal sex the same as illegal oral sex and illegal anal sex was controversial.30 Those being discriminated against were not particularly sympathetic figures. Changing the law was described by many as a predatory act and resulted in death threats to state legislators. But the principles of sexual orientation equality were strong enough to persuade a narrow majority of the State Assembly to vote in favor of changing the law.
I supported the change. I strongly believe in equality under the law regardless of sexual orientation. That means supporting equality in punishments for sex-offenders.
However, if I am willing to take this position, I cannot then nod approvingly at United Airlines acting in a discriminatory manner just because it superficially benefits LGBTQIA employees. Discrimination on the basis of sexual orientation and gender identity that is directed against straight and non-transgender individuals ultimately harms the LGBTQIA community.31 It only serves to perpetuate the differences between LGBTQIA people and straight and non-transgender people resulting in further discrimination.32
And the LGBTQIA community cannot simultaneously demand equality under the law and societal equality regardless of sexual orientation and gender identity only to discard the principle when it seems convenient. Even when it’s motivated by a benign purpose.
No U.S. based airlines should be intentionally staffing flights with 100% LGBTQIA service crews. Title VII of the 1964 Civil Rights Act now covers the LGBTQIA community. Those of us who believe in equality under the law must ensure the law is followed.
United Airlines’ decision to intentionally staff an all-LGBTQIA flight crew is a step backwards.
I am happy to withdraw this post if it comes to light that United Airlines recognized that for the first time, one of its international flights had an all LGBTQIA flight crew and wanted to mark the occasion. Celebrating firsts is typically not discriminatory. Nor is celebrating diversity. However, intentionally placing people in work assignments due to their characteristics is prohibited.
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
https://www.lcwlegal.com/news/president-biden-has-issued-two-executive-orders-regarding-his-administrations-policy-on-sex-based-discrimination/
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