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July 01, 2004

Protection for LGBT Employees Under Title VII of the 1964 Civil Rights Act

by Courtney Joslin

Currently, there is no federal law that explicitly prohibits discrimination against lesbian, gay, bisexual, and transgender (LGBT) people. Title VII of the Civil Rights Act of 1964 outlaws hiring or employment discrimination on the basis of the employee’s “race, color, religion, sex, or national origin,” but does not mention sexual orientation, much less gender identity. Attempts to amend Title VII or to enact new, freestanding federal legislation to prohibit discrimination due to sexual orientation go back almost thirty years. The first such attempt—to add the phrase “affectional or sexual preference”—was made in 1975. Civil Rights Amendments Act of 1975, H.R. 166, 94th Cong. (1975). To date, however, all such legislative attempts have been unsuccessful. No bill specifically prohibiting employment discrimination on the basis of gender identity has been introduced on the federal level.

Relying in part on this history of unsuccessful legislative attempts to amend Title VII, federal courts have uniformly held that Title VII did not prohibit discrimination on the basis of sexual orientation. Early court decisions also held that transgender people were not entitled to protection from employment discrimination under Title VII. More recently, however, a new line of cases, based on intervening U.S. Supreme Court decisions, may provide protection for LGBT people in some situations.

DeSantis v. Pacific Telephone and Telegraph Co., 608 F.2d 327 (9th Cir. 1979) is the leading case early case concerning the rights of lesbian and gay people under Title VII. The appeal in DeSantis consisted of three consolidated cases, all involving gay or lesbian plaintiffs who were seeking employment discrimination protection under Title VII. The plaintiffs presented two primary arguments as to why they were entitled to protection under Title VII. First, they argued that Title VII should be interpreted to cover discrimination on the basis of sexual orientation and, second, that Title VII should be interpreted to encompass discrimination directed at a male employee because he is perceived to be “effeminate.” The court rejected both arguments, concluding that Congress intended to cover only “traditional notions of sex,” which did not, in the court’s view, include either discrimination on the basis of sexual orientation or “discrimination because of effeminacy.” Id. at 332.

Courts followed a similar line of thinking in holding that transsexual people were excluded from protection under Title VII. For example, in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), the Seventh Circuit rejected a Title VII claim brought by a transsexual employee who had been employed as a commercial airline pilot. After the employee transitioned from male to female, she was fired. The district court ruled in favor of the plaintiff. The district court held that, although Title VII did not prohibit discrimination on the basis of “sexual preference,” and therefore did not provide protection for lesbian and gay employees, it did provide protection for people such as the plaintiff because while “the term ‘sex’ does not comprehend ‘sexual preference,’ . . . it does comprehend ‘sexual identity.’” Id. at 1084. The Seventh Circuit reversed this decision, holding that Congress intended only to “prohibit discrimination against women because they are women and men because they are men.” Id. at 1085.

Two U.S. Supreme Court decisions have undermined the reasoning of both lines of cases and, as a result, recent cases have held that LGBT people may be entitled to protection under Title VII in some circumstances. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that Title VII was not limited to discrimination on the basis of one’s biological status as a man or a woman but instead prohibits the “entire spectrum” of discrimination on the basis of sex, including discrimination on the basis of gender stereotypes. In Price Waterhouse, plaintiff Ann Hopkins was denied a partnership at an accounting firm because she was deemed to be insufficiently “feminine.” Id. at 234–35. To improve her chances for partnership, Hopkins was told she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The employer argued that Title VII did not prohibit discrimination based on gender stereotypes. The Supreme Court disagreed. “As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Id. at 251 (internal citations omitted). Nine years later, in Oncale v. Sundowner, 523 U.S. 75 (1998), the Supreme Court removed another barrier when it held that a plaintiff could state a Title VII claim where sexual harassment was perpetrated by a person of the same sex.

Based on these Supreme Court decisions, courts across the country have held that LGBT people may be entitled to protection under Title VII. For example, in Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002), the district court denied summary judgment for an employer in a Title VII suit brought by a lesbian employee. The plaintiff presented evidence that throughout her employment, her female supervisor made disparaging and harassing comments based on gender stereotypes, including: “Oh, I thought you were a man”, “Do you wear the dick in the relationship?” and, “I thought you wore the pants.” In ruling in favor of the employee, the court relied upon a recent Ninth Circuit case— Nicholas v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001)—abrogating its earlier decision in DeSantis and holding that a male employee is entitled to redress under Title VII if he can prove that he was discriminated against for failing to comport with stereotypical notions of how men should appear and behave. Similarly, a concurring opinion in the en banc decision Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002), revived a Title VII claim brought by a gay male plaintiff who had presented evidence that his former coworkers taunted him by calling him feminine names and endearments, and ridiculed him for walking in a feminine manner.

With respect to transgender people, courts have similarly held that if a transgender person is targeted for failing to conform to stereotypes about how men and women are expected to appear and behave, they may be protected under Title VII. In Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), the plaintiff was a transgender prisoner who sued under the Gender Motivated Violence Act after being assaulted by a guard. Relying on the old case law on this issue, including Ulane, the guard argued that sex discrimination laws do not protect transgender people. The Ninth Circuit rejected this argument, holding that the “initial judicial approach taken in cases such as Holloway [and Ulane] has been overruled by the logic and language of Price Waterhouse.” Id. at 1201. The court concluded that “[d]iscrimination because one fails to act in the way expected of a man or a woman is forbidden under Title VII,” and that a transgender person who is targeted on this basis is entitled to protection.

Forty years after the passage of the Civil Rights Act of 1964, there is still no explicit federal protection for LGBT employees. In at least some circumstances, however, courts are increasingly finding that LGBT employees are entitled to protection under Title VII.

Courtney Joslin

Courtney Joslin is a staff attorney at the National Center for Lesbian Rights in San Francisco and an adjunct professor at the University of California-Berkeley School of Law (Boalt Hall). She is co-chair of the Sexual Orientation and Gender Identity Committee of the ABA’s Section of Individual Rights and Responsibilities.