Recent Cases on Sexual Orientation Discriminaton in the Workplace

EEOC’s Position and Enforcement Actions in Protecting Sex Orientation

The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.[1] These protections apply regardless of any contrary to state and local laws.[2]

Since 2015, the EEOC has been actively advancing a position that Title VII prohibits sexual orientation discrimination under the umbrella of prohibited gender discrimination.[3]

Sexual Orientation. In Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.

Transgender Status. In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the EEOC ruled that intentional discrimination against a transgender individual because that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII. [4]

Both cases reflect the EEOC’s position as law enforcement agency in protecting civil rights, which is allegations of sexual orientation discrimination necessarily involve sex-based considerations.  First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex.  For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse.  Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex.  That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex.  Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

11th Circuit: Sexual Orientation Discrimination is Not Actionable Under Title VII

On March 10, 2017, the Court of Appeals for the Eleventh Circuit in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) held sexual orientation discrimination is not actionable under Title VII. This case involved the case of Jameka Evans, a lesbian and former security guard at Georgia Regional Hospital, who filed a pro se Title VII complaint, seeking recovery based on sexual orientation and gender non-conformity discrimination, as well as retaliation, which allegedly occurred during her employment at Georgia Regional Hospital.[5] Evans argued that although the statute does not explicitly outlaw anti-LGBTQ discrimination, it does bar “sex discrimination,” including sex stereotyping, which necessarily encompasses sexual-orientation discrimination. [6]

The Court followed Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), which stated that “discharge for homosexuality is not prohibited by Title VII.”[7] In a case of a claim for sexual orientation discrimination, the employee must show that discrimination was based solely on the employee’s status as gay or lesbian individual, without regard to any other individual characteristics.[8] The Eleventh Circuit held it was not cognizable as a Title VII claim, because Title VII does not specify sexual orientation as a distinct, protected category.[9]

In the case of a gender non-conformity claim, however, the employee must show that they suffered discrimination based on their failure to conform to traditional social norms of what it means to be either masculine or feminine. Under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), Title VII prohibits discrimination based on gender stereotypes. In Evans, the Eleventh Circuit found the count for gender non-conformity discrimination was a permissible, valid and separate, distinct avenue for relief under Title VII.

The impact of Evans for Georgia employers is that employees may not sue for sexual orientation discrimination under Title VII but may do so for gender non-conformity discrimination.  Nevertheless, employers should make sure their non-discrimination policies cover sexual orientation discrimination and be aware that sexual orientation discrimination can be protected under several local ordinances.

Seventh Circuit Court Rules Sexual Orientation Is Protected Class

On April 4, 2017, the Seventh Circuit Court of Appeals held discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Kimberly Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017).  Kimberly Hively, a former adjunct professor alleged that she was repeatedly denied consideration for full-time teaching positions and her part-time contract was not renewed due to her sexual orientation.[10] The Court did not follow the Eleventh Circuit’s holding in Evans. Instead, the Court cited the Second Circuit’s ruling in Christiansen v. Omnicom Group, Inc.­, 2017 WL 1130183 (2d Cir. 2017)—an openly gay male plaintiff pleaded a claim of gender stereotyping that was sufficient to survive dismissal and the Plaintiff was granted an extension of time through April 28 to file a motion for rehearing.

Relying on “common sense reality,” the Seventh Circuit held 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.”[11] The Court noted that although discrimination based on sexual orientation has historically been deemed to be distinct from sex discrimination, the line between sexual orientation and sex has become increasingly blurred. The Court referred to Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which held that Title VII’s protection against sex discrimination applies to harassment in the workplace between members of the same sex, and Price Waterhouse v. Hopkins, which held that discrimination based on a person’s failure to conform to a certain set of gender stereotypes constitutes sex discrimination under Title VII.

Notably, the Court found that the failure of the language of Title VII to expressly encompass sexual orientation as a protected class to be “neither here nor there,” stating that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” The Court ultimately concluded that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

While the Seventh Circuit is not the first court to hold that Title VII protects sexual orientation, it is the highest court to make such a finding. Only a limited number of federal trial courts have made the same ruling, and the EEOC ruled in Baldwin v. Foxx, EEOC, Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015), that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII. Due to the split in authority between the federal appellate courts, absent legislative action by Congress, this issue is likely to be resolved by the U.S. Supreme Court.

~Author: Xi Liu, Emory School of Law 3rd Year Law Student

[1] Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance.  For more information, see Frequently Asked Questions on E.O. 13672 Final Rule, www.dol.gov/ofccp/LGBT/LGBT_FAQs.html

[2] State or local fair employment laws may explicitly prohibit discrimination based on sexual orientation or gender identity.  Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality. On the other hand, if a state or local law permits or does not prohibit discrimination based on sexual orientation or gender identity, the EEOC will still enforce Title VII’s discrimination prohibitions against covered employers in that jurisdiction because contrary state law is not a defense under Title VII.  Applicants and employees in those jurisdictions should contact the EEOC directly if they believe they have been subjected to sex discrimination based on sexual orientation or gender identity. https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm#other

[3] Since then, the number of EEOC charges alleging sex discrimination based on LGBT status has increased 28 percent year-over-year. And in March 2016, the EEOC issued a press release announcing that it had filed its first two sexual orientation lawsuits alleging violations of Title VII.

[4] Applying Macy, the EEOC has also held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment, Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), and that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim, Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).

[5] Id.

[6] Plaintiff argues that this prohibition bars employers from discriminating on the basis of gender presentation and sexual orientation.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.