Civil Rights

Civil rights are personal rights guaranteed and protected by the U.S. Constitution and federal laws enacted by Congress, such as the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Civil rights include protection from unlawful discrimination.

The Civil Rights Division of the Department of Justice, created in 1957 by the enactment of the Civil Rights Act of 1957, works to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of Amercan society. The Division enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin. Title VI of the Civil Rights Act of 1964 (Title VI) is a Federal law that protects persons from discrimination based on their race, color or national origin in programs and activities that receive Federal financial assistance.

A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are not public accommodations. Under Title II of the Civil Rgiths Act, 42 U.S.C. §2000a (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

42 U.S.C. §2000a(b) Each of the following establishments is a place of public accommodation within this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action: (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence. (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment, or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment and (B) which holds itself out as serving patrons of any such covered establishment.

It would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited. For example, requiring presentation of a driver's license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals with vision impairments. This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.

It is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits. This line of cases began with the marvelously named Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court held that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 388 U.S. at 12. The Court rejected the argument that miscegenation statutes do not violate equal protection because they “punish equally both the white and the Negro participants in an interracial marriage.”

Many Americans viewed heterosexuality as the norm and other forms of sexuality as exceptional. H.R.3185 — 114th Congress (2015-2016) would have amended the Civil Rights Act of 1964 to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation. It defined: "sex" to include a sex stereotype, sexual orientation or gender identity, and pregnancy, childbirth, or a related medical condition; "sexual orientation" as homosexuality, heterosexuality, or bisexuality; and "gender identity" as gender-related identity, appearance, mannerisms, or characteristics, regardless of the individual's designated sex at birth. It would have prohibited employers with 15 or more employees from discriminating based on sexual orientation or gender identity, subject to the same exceptions and conditions that currently applied to unlawful employment practices based on race, color, religion, sex, or national origin.

For many years the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) stated (as if this resolved matters) that Title VII’s prohibition against sex discrimination “implies that it is unlawful to discriminate against women because they are women and against men because they are men.”

The goalposts had been moving over the years, as the Supreme Court shed more light on the scope of the language that already is in the statute: no sex discrimination. The Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose. Indeed, in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire.

The Supreme Court, however, had never spoken directly to that question. But Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) held that the practice of gender stereotyping fell within Title VII’s prohibition against sex discrimination. Hopkins had alleged that her employer was discriminating only against women who behaved in what the employer viewed as too “masculine” a way — no makeup, no jewelry, no fashion sense.

The agency most closely associated with this law, the Equal Employment Opportunity Commission, in 2015 announced that it now took the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation.

Finally, the 7th U.S. Circuit Court of Appeals ruled 8-3 on 04 April 2017, 15-1720 Kimberly Hively v. Ivy Tech Community College, that the 1964 Civil Rights Act protects employees from workplace discrimination on the basis of sexual orientation. The key point was whether the complainant’s protected characteristic played a role in the adverse employment decision. Richard Posner, Circuit Judge, concurring, wrote " it has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.

"We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, André Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin — a very partial list). "