Post submitted by Stephen Peters,  former Senior National Press Secretary and Spokesperson   

Today, HRC released a new report emphasizing the critical need for lawmakers to address court-created loopholes that undermine federal, state, and local employment non-discrimination protections in instances when discrimination is based on an employer’s misperceptions about the employee.

The new report, Discrimination Based on Perceived Characteristics, outlines how, in many jurisdictions, the loopholes actually allow employees to be discriminated against if their harasser or employer has targeted them based on an incorrect assumption about their race, religion, or other characteristic. District courts created the loopholes in non-discrimination protections by unconscionably ruling that discrimination based on misperceptions is not prohibited in federal non-discrimination law. The Equality Act would resolve the problem by ensuring that employees are clearly protected based on both “actual or perceived” characteristics.

“These court-created ‘misperception’ loopholes seriously undermine strong employment non-discrimination laws that are essential to ensuring productive and inclusive workplaces,” said HRC Associate Legal Director Robin Maril, one of the authors of the report. “Discrimination is harmful, regardless of whether or not it’s based on an incorrect assumption about who someone is. It’s crucially important that lawmakers address this troubling problem by passing legislation like the Equality Act to explicitly protect against discrimination based on both ‘actual or perceived’ characteristics.”

The report details examples of misperception discrimination, including anti-gay harassment or intimidation by co-workers regardless of the employee’s actual sexual orientation; failure to interview a candidate on the assumption that the candidate is a member of a certain race or ethnic class, regardless of their actual race or ethnicity; and refusal to promote an otherwise-qualified employee because of anti-Muslim or anti-Semitic bias, regardless of the actual religion of the employee.                               

A number of district courts have ruled that federal non-discrimination laws like Title VII of the Civil Rights Act of 1964 — which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin — do not, however, prohibit “misperception” discrimination. According to the report, these decisions mean that, in many jurisdictions, employees who are subjected to clear harassment or discrimination may have no recourse if the harassers or the employer have made incorrect assumptions about their race, religion, sexual orientation or other characteristic.                                                      

State and municipal lawmakers can prevent this misinterpretation by the courts and explicitly cover misperception discrimination by including language such as “actual or perceived” characteristics in non-discrimination laws. This language does not change the burden of proof or result in frivolous cases; it simply closes this court-created loophole.

At the federal level, the Equality Act — legislation that would finally guarantee explicit, permanent protections for LGBTQ people under our nation's existing civil rights laws — would also provide a solution by ensuring federal civil rights protections are clearly based on both “actual or perceived” characteristics. The bipartisan legislation is co-sponsored by more than 240 Members of Congress.

Read the full report here.