SEXUAL ORIENTATION/GENDER IDENTITY DISCRIMINATION

ROLE OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Protections at the national level are somewhat limited, as there is no federal statute explicitly addressing employment discrimination or retaliation based on sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (“EEOC”) interprets Title VII of the Civil Rights Act of 1964, as amended, to cover discrimination against LGBT employees, as “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

Through investigation, conciliation, and litigation of EEOC Charges filed by LGBT individuals against private sector employers, the Commission takes the position that existing sex discrimination provisions in Title VII protect LGBT applicants and employees against employment bias. A growing number of court decisions continue to endorse the EEOC’s interpretation of Title VII. In several cases, the Commission has filed LGBT-related lawsuits under Title VII challenging alleged sex discrimination claims brought on behalf of LGBT Charging Parties. Of course, LGBT individuals may also file a lawsuit on their own after receiving the “Right to Sue” from the EEOC.

RECOGNIZED VIOLATIONS BY THE EEOC

LGBT-related discrimination claims that the EEOC continues to maintain as unlawful sex discrimination include, but are not limited to the following:

Failing to hire an applicant.

Often, because he/she is a transgender male or woman.

Firing an employee.

For example, when he/she is planning or has made a gender transition.

Denying an employee equal access.

Rights to a common restroom corresponding to the employee’s gender identity must not be violated.

Harassing an employee because of a gender transition.

This is done so by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity that the LGBT employee identifies, and which the employee has communicated to management and employees.

Denying an employee a promotion.

Often, because he/she is gay or straight.

Discriminating in terms, conditions, or privileges of employment.

Employers may not provide a lower salary to an employee because of sexual orientation, or deny spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.

Harassing an employee in actions.

Employers may not harass a LGBT employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.

Further illegal treatment.

Employers may not discriminate against or harass an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

RECENT ANTI-GAY DISCRIMINATION CASE PRECEDENT

The United States Court of Appeals for the 7th Circuit issued a 2017 landmark decision in Hively v. Ivy Tech, holding that Title VII of the Civil Rights Act of 1964, as amended, prohibits sexual orientation discrimination. The 8-3 ruling is an extraordinary victory for LGBT advocates-an emphatic declaration from a group of judges that anti-gay work-place discrimination is clearly illegal under federal law.

The majority opinion (en banc, joined fully by six judges, and in part by two more) began by noting that “sex” as a protected classification has expanded under a succession of Supreme Court decisions: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality) (discrimination against woman candidate for partnership because she supposedly did not behave femininely); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (same-sex harassment actionable under Title VII); Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (marriage equality guaranteed by Equal Protection clause).
Writing for the majority, Chief Judge Diane Wood noted “[t]he goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination.” Adverting to the Supreme Court authority, the majority extracted the principle that although “Congress may not have anticipated a particular application of the law,” this “cannot stand in the way of the provisions of the law that are on the books.”

Chief Judge Wood’s opinion for the court largely tracked the reasoning provided in detail by the EEOC when it determined in 2015 that Title VII does bar sexual orientation discrimination. EEOC Commissioner Chai Feldblum, also stated that as a result of the majority opinion in Hively, she was “gratified to see that the 7th Circuit has adopted the simple logic that sexual orientation discrimination is a form of sex discrimination” and that “its reasoning can serve as a model for other courts.”

In overruling old precedents and holding that Title VII protects all gay employees, the majority interpreted the term “sex” on a fresh slate.
Chief Judge Wood provided three interrelated reasons why Title VII’s ban on sex discrimination must encompass discrimination on the basis of sexual orientation. First, in Price Waterhouse v. Hopkins, supra, the Supreme Court held that sex discrimination includes sex stereotyping-that is, mistreating an employee because she fails to conform to gender stereotypes. That logic, Wood explained, applies to gay employees who “represent the ultimate case of failure to conform to the female stereotype.” The majority, in Hively, opined that because the employee was not heterosexual, she defied the stereotypical expectation that women date members of the opposite sex. So, by discriminating against the female employee (for failing to conform to this gender role), the majority held, that the employer engaged in unlawful sex stereotyping.

Second, Chief Judge Wood deployed what she called the “comparative method” of Title VII interpretation. This is derived from reading the plain language of the statute itself. On its face, Title VII bars discrimination because of sex. For example, if the LGBT employee were a man dating a woman-or if she were dating a man-she would not face discrimination. She only faced discrimination because she is a woman dating another woman. “This describes paradigmatic sex discrimination,” Wood wrote, and the employer “disadvantag[ed] her because she is a woman.” These facts lead to “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” noted the majority.

Third, Wood relied upon the “associational theory”-also known as the Loving theory-of sex discrimination. In Loving v. Virginia, the Supreme Court found that when the government discriminates against an individual for associating with a different race, it has discriminated on the basis of race. Many courts have extended this theory to Title VII, holding that when an employer mistreats a worker for marrying a person of a different race, he has violated Title VII’s ban on race discrimination.

Notably, the majority also discussed the developing advances and constitutional law rights of gays and lesbians. “Today’s decision must be understood against the backdrop of the Supreme Court’s decisions, not only in the field of employment discrimination, but also in the area of broader discrimination on the basis of sexual orientation.” (citing Romer v. Evans, 517 U.S. 620 (1996) (striking down state constitutional provision forbidding any arm of government acting to protect homosexual, lesbian, or bisexual persons); Lawrence v. Texas, 539 U.S. 558 (2003) (overturning criminal sodomy laws); and United States v. Windsor, 133 S. Ct. 2675 (2013) (invalidating federal Defense of Marriage Act)).

In closing, the majority technically limited the decision to sexual orientation: “We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” It left open the possibility to examine the differences (if any) between gender and sex. Still, the opinion is drafted so that reasoning applies equally to transgender and other LGBT individuals.

Judge Richard Posner wrote separately to point out that while Title VII’s drafters did not mean to protect gay employees, their intent is immaterial. Courts, he insisted, should interpret statutes in a manner that “infuses” them “with vitality and significance today” rather than relying on their original meaning. Posner contrasted this theory with the conservative “originalism” championed by Justice Antonin Scalia, as strictly the genitalia you’re born with.

This recent decision is, in short, a thunderbolt. It lays out three cogent reasons why sexual orientation discrimination is always a form of sex discrimination. It essentially also dares other courts, including the Supreme Court, to find flaws in its careful, disciplined analysis. Wood’s majority opinion contributes to a growing (though not yet universal) consensus among federal courts that Title VII obviously protects gay employees-and confirms that this consensus is bipartisan. It will be impossible for other judges to ignore. With continued support and recognition, it will soon push a majority of the Supreme Court to recognize that anti-gay discrimination is, at root, discrimination “because of sex.”