Wrongful Termi(Gay)Tion: A Comparative Analysis of Employment Non-Discrimination Laws and the LGBTQ+ Workplace Protections in South Africa and the United States

Although the United States has made great strides toward equality for its LGBTQ+ citizens in recent years, South Africa has demonstrated far greater progress concerning equal protection and employment non-discrimination of its LGBTQ+ citizens. The South African Constitution, for example, expressly prohibits all unfair discrimination on the basis of sex, gender, or sexual orientation, whether the government or a private party committed it. In December 2005—a whole decade before Obergefell v. Hodges—the South African Constitutional Court handed down Minister of Home Affairs v. Fourie, a landmark decision that legalized marriage equality. Moreover, unlike the United States, South Africa has federal laws that prohibit employment discrimination against its LGBTQ+ citizens and provide them with robust workplace protections. This Note contends that employment non-discrimination laws and workplace protections for LGBTQ+ citizens in the United States are woefully inadequate. Although some states afford robust protections for those who reside within their borders, many states do not. This results in a legal system in which some citizens are protected by law against employment discrimination on the basis of sexual orientation and gender identity while others are not. “[E]qual dignity in the eyes of the law” cannot and should not depend on one’s zip code. Thus, this Note further contends that the U.S.’ lawmakers and policymakers should look to South Africa as a model for implementing federal laws that prohibit employment discrimination against LGBTQ+ citizens and provide substantial workplace protections. Although it is unlikely that the U.S. Constitution will be amended to join the South African Constitution in prohibiting discrimination on the basis of sexual orientation or gender identity, there are other avenues to provide equally robust workplace protections for LGBTQ+ individuals. Perhaps the most promising avenue is federal legislation that mirrors South African laws. Indeed, members of Congress have proposed pieces of legislation that would effectuate significant progress in this area of the law. But not all of the proposed pieces of legislation are adequate. The United States should strive to implement non-discrimination laws and workplace protections that are equally as forceful as those in South Africa. The Equality Act, rather than the Employment Non-Discrimination Act, is therefore the better piece of proposed legislation to adopt. In the absence of federal non-discrimination laws and workplace protections, each state should continue to “serve as a laboratory” and “try novel . . . experiments.” Additionally, Fortune 500 companies should continue to lead the way in the private sector by providing substantial workplace protections to their LGBTQ+ employees.