Could the United States Supreme Court Find that Title VII Prohibits Gender Identity and Sexual Orientation Discrimination?

posted by Michael R. Fortney  |  Jan 7, 2015 07:31 AM in Employment Law

In Price Waterhouse, the Supreme Court held that Title VII reaches claims of “sex stereotyping.” As a result, employers who make employment decisions based on a belief that women should not be aggressive, or that men should not be effeminate, violate Title VII. Their decisions, based on sexual stereotypes, are decisions made on the basis of sex.

After Price Waterhouse, gay, lesbian, bi-sexual and transgender (LGBT) employees who encountered discrimination based on their sexual orientation or gender identity tried, without success, to convince courts to extend Title VII's protections to sexual orientation and gender identity. Each U.S. federal appellate court to consider the question held that Title VII does not prohibit discrimination based on sexual orientation, sexual preference, or gender identity, because those are claims of discrimination based on sexual orientation, not sex. This suggests that, if the issue reached today's conservative U.S. Supreme Court, it too would reach a similar result. However, that may not be the case. 

On December 18, 2014, U.S. Attorney General Eric Holder announced that the Department of Justice (DOJ) now takes the position that Title VII of the Civil Rights Act of 1964 provides protection from sex discrimination for lesbian, gay, bisexual, and transgender ("LGBT") people.

This announcement follows other executive branch agencies that altered their views of Title VII’s prohibition on sex discrimination. For example, on July 21, 2014, the President signed an executive order extending sexual orientation and gender identity workplace protections to federal employees. Then, the Department of Labor (DOL) then updated its nondiscrimination guidance on December 3, 2014, to classify discrimination based on gender identity or transgender status as sex discrimination. Additionally, the Equal Employment Opportunity Commission (EEOC) has for years interpreted Title VII in a similar way and today investigates and prosecutes claims of unlawful discrimination by employers against LGBT individuals.

The DOJ has jurisdiction to prosecute enforcement actions against state and local government employers either, on recommendation by the EEOC, or where it has reason to believe a “pattern or practice” of discrimination exists. Therefore, state and local governments that permit or have a policy of tolerating discrimination of LGBT individuals are at risk of suit by the DOJ under Title VII.

Although the DOJ, DOL and EEOC views on discrimination are contrary to case law in the Sixth Circuit and other federal appellate courts, it is premature to dismiss them as mere executive overreach by the Obama Administration. Rather, if the question of Title VII's coverage of sexual orientation or gender identity discrimination reached the Supreme Court today, the circumstances would be similar to those when the Supreme Court last significantly expanded Title VII.

That significant expansion came in 1986 when the Supreme Court decided Meritor. The Court found that sexual harassment was a form of sex discrimination prohibited by Title VII, and in doing so it relied heavily on executive branch guidance from the EEOC. After Meritor, in Sundowner, the Supreme Court extended Meritor to harassment by members of the same sex. Importantly, Sundowner did not turn on whether gender identity discrimination is a form of sex discrimination. Instead, Sundowner held that the defining feature of discrimination based on sex is that the worker is placed in a disadvantageous position because of sex. As a result, the Supreme Court found that same sex harassment is sex discrimination under certain circumstances.

As in 1986, executive branch guidance and prior Supreme Court precedent could soon permit the U.S. Supreme Court to extend Title VII to prohibit sexual orientation and gender identity discrimination.  Few can credibly argue that discrimination against LGBT workers because of their sexual identity or orientation does not disadvantage them. This places employers who discriminate against LGBT individuals at risk of a Title VII suit.

Any employer, but especially government employers or private employers who work with the government on a regular basis, who does not already prohibit discrimination based on sexual orientation or gender identity should consider reshaping their employment policies so they do not become the target of a Title VII lawsuit.

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