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April 30, 2015 Articles

It's Not the "ENDA" Sexual Orientation Discrimination

By David Scher and R. Scott Oswald

The Employment Non-Discrimination Act (ENDA) is a piece of legislation that is broadly designed to prevent employers from discriminating against employees on the basis of their sexual orientation or gender identity. Though ENDA is not expected to pass through the House of Representatives, more interesting is the fact that many pro-civil rights and LGBT advocacy groups have actually withdrawn their support for the legislation. 

With ENDA, at least in its current form, seemingly at its end (pardon the pun), many employers may erroneously believe that they can terminate, refuse to hire, or otherwise discriminate based on an employee’s sexual orientation. Such behavior could have very significant and immediate consequences for the employer, up to and including defending itself in a lawsuit. As employee-side counsel, we hope to provide employees with information about how they can protect their rights. Of equal importance, however, we want to give notice to employers and to our colleagues across the aisle about how a company can find itself involved in litigation when it has engaged in discriminatory practices based on an employee’s sexual orientation. But before discussing the nuts and bolts of discrimination law, it is first important to review ENDA’s history and learn a bit more about the intricacies of the legislation and the impact that recent judicial opinions have had on the likelihood of its passage. 

Legislative History and the Impact of Hobby Lobby
In 1994, Congressman Gerry Studds, a representative from Massachusetts’s 10th Congressional District, and more than 100 of his colleagues, introduced the first iteration of ENDA, legislation designed to “prohibit employment discrimination on the basis of sexual orientation.” S. 815, 113th Cong. § 2 (2013). Despite Congress’s unwillingness to act in 1994, nearly every Congress since that time has introduced some iteration of the bill. As state legislatures and courts across the country have passed laws and issued opinions allowing same-sex marriage, many thought that the 2013 iteration of ENDA was poised for passage. In a July 2013 letter to Congress, the Leadership Conference on Civil and Human Rights, along with 87 other human rights and LGBT advocacy groups, urged federal lawmakers to pass ENDA, writing that it “is time for Congress to act on this crucial civil rights legislation.” The Senate responded by approving ENDA with a 64–32 vote and sending it to the House for consideration. 

Things all changed following the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Without going into too much detail, Hobby Lobby dealt with whether the Affordable Care Act’s requirement that employers provide medical coverage to include certain types of contraceptive drugs and devices was in violation of the Religious Freedom Restoration Act of 1993 (RFRA) and the Free Exercise Clause. 134 S. Ct. at 2759; see also 42 U.S.C. § 2000bb-1(a) (providing that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”). The Court talked at length about the religious exemptions available to employers under the RFRA who, because of their religious beliefs, did not want to provide such coverage to employees. In a 5–4 opinion, the Court concluded that compelling a privately held corporation to offer these contraceptives over its religious-based objections violated the RFRA. Fearful that employers would rely on the RFRA’s religious exemption to challenge ENDA, LGBT rights advocates began to withdraw their support from the legislation. Ed O’Keefe, “Gay Rights Groups Withdraw Support of ENDA after Hobby Lobby Decision,” Wash. Post, July 8, 2014. 

What Is ENDA and What Is the Issue with Exemptions?
As we discussed at the outset, ENDA is unpassed legislation that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. S. 815, 113th Cong. §§ 2–3. Borrowing heavily from the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., ENDA grants authority to the Equal Employment Opportunity Commission (EEOC) to investigate employees’ claims that their employer has discriminated against them on the basis of their sexual orientation or gender identity or that their employer has retaliated against them for opposing any such discrimination. S. 815, 113th Cong. §§ 4–5. 

Also included in the bill are sections entitled “Exemption for Religious Organizations” and “Nonapplication to Members of the Armed Forces; Veterans’ Preferences.” S. 815, 113th Cong. §§ 6–7. As the headings suggest, ENDA exempts the military and certain specified organizations whose “purpose and character are primarily religious.” See, e.g., EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988). Even with these exemptions, most LGBT advocates were strong supporters of ENDA’s passage; however, in the wake of Hobby Lobby, it is the exemptions under the RFRA that are viewed as problematic. Indeed, if an employer can refuse to provide contraception due to its religious beliefs, the prevailing thought is that it would also be able to operate outside of the reach of ENDA—and, consequently, discriminate based on sexual orientation and gender identity—by relying upon those very same beliefs. 

Existing Prohibitions on Sexual Orientation and Gender Identity Discrimination
Whether lawmakers will respond to the LGBT community’s concerns and revamp ENDA remains to be seen. What is clear, however, is that the failure to pass ENDA does not mean that it is open season for employers to discriminate against the LGBT community. First and foremost, 21 states and the District of Columbia have laws on their books that prohibit discrimination based on an employee’s or applicant’s sexual orientation. Human Rights Campaign, Statewide Employment Laws and Policies (2014). For example, the District of Columbia’s Human Rights Act provides: 

It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.

D.C. Code § 2-1401.01 (emphasis added). Thus, if an employee, at least in the District of Columbia or one of the 21 states that have passed similar such laws, is able to establish that his or her employer has discriminated against him or her on the basis of sexual orientation or gender identity, he or she may have a claim under applicable state law. 

What is less clear, however, is the extent to which employees are protected from sexual orientation discrimination under federal law. Title VII of the Civil Rights Act of 1964 provides that, subject to certain specific limitations, no employer may discriminate against an employee “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. For a long time, however, courts have struggled with determining how discrimination based on sexual orientation fits within Title VII’s prohibition against discrimination based on “sex.” See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (noting that “we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex’”). Recent case law does suggest that Title VII does not embrace protections against sexual orientation. For example, in Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Second Circuit Court of Appeals, citing earlier precedent, wrote: 

[T]he other categories afforded protection under Title VII refer to a person’s status as a member of a particular race, color, religion or nationality. “Sex,” when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender. . . . The proscribed differentiation under Title VII, therefore, must be a distinction based on a person’s sex, not on his or her sexual affiliations.

In light of Title VII’s failure to protect individuals from discrimination based on sexual orientation, the only avenue left is for would-be plaintiffs to avail themselves of the “gender stereotyping” theory of discrimination under Title VII, perhaps most notably discussed in Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (stating that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes”). Under such a theory, the plaintiff does not allege that he or she was discriminated against by reason of his or her sexual orientation; rather, the plaintiff must allege that it was his or her failure to comply with societal norms of how a man or woman should or should not behave. Doe ex rel. Doe v. City of Belleville, Ill., 119 F.3d 563, 576 (7th Cir. 1997) (holding that a plaintiff had presented sufficient evidence to support a charge of discrimination where he demonstrated that coworkers harassed him because he wore an earring, questioned him about his gender, and threatened him with sexual assaults), vacated on other grounds, 523 U.S. 1001 (1998). 

Why Is This Problematic?
The problem for courts is best summed up by an opinion from the Second Circuit in which the court stated, “When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that ‘[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.’” Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (quoting Howell v. N. Cent. Coll., 320 F. Supp. 2d 717, 723 (N.D. Ill. 2004)). The outcomes of gender stereotyping cases involving members of the LGBT community are, as a result, all over the map. In Dawson for example, the court labors to provide a standard for determining whether gender stereotyping has occurred. It notes, “Generally speaking, one can fail to conform to gender stereotypes in two ways: (1) through behavior or (2) through appearance.” Dawson, 398 F.3d at 221. 

In our view, we think that this line from the Dawson court does a good job in illustrating the challenges associated with a member of the LGBT community bringing a claim under a theory of gender stereotyping. The plaintiff is put in the seemingly impossible task of distinguishing his or her behavior or appearance from his or her identity. For example and taking this seemingly arbitrary distinction to the extreme, if a homosexual plaintiff alleges that his employer terminated him because he engaged in sexual intercourse with other gay men, would that satisfy the Dawson requirements of sexual stereotyping? It seems to us that it would: one man having sex with another man is a “behavior” that is counter to “societal norms of how a man . . . should . . . behave.” Admittedly, this would be an extreme and probably unlikely case; however, it does illustrate the problems with distinguishing behavior and identity. 

The following paragraph from a recent Third Circuit Court of Appeals opinion, Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 291–92 (3d Cir. 2009), reflects how a plaintiff may be able to demonstrate to a court’s satisfaction that discriminatory animus is based on behavior and not on sexual orientation: 

The record demonstrates that Prowel has adduced evidence of harassment based on gender stereotypes. He acknowledged that he has a high voice and walks in an effeminate manner. In contrast with the typical male at Wise, Prowel testified that he: did not curse and was very well-groomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit.” Prowel also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with “pizzazz.”

In this case, the Third Circuit noted, “There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.” Prowel, 579 F.3d at 292.But, under the paradigm set forth by the Third Circuit, we are not confident that is really true. Merely surviving summary judgment does not equate to a verdict for the plaintiff. The court has simply passed the buck to the members of the jury, who will be asked to determine whether it was the plaintiff’s “nonconforming” behavior that led to the discrimination or the plaintiff’s sexuality. If it is the former, the plaintiff wins; if it is the latter, the plaintiff loses. Putting aside the obvious question of how to instruct a jury on such a distinction, it seems to us that under this formulation, the employer in such a situation actually wins if it fully admits that it discriminated against the plaintiff because of an animosity toward homosexuals

In March 2014, Judge Kollar-Kotelly of the District Court for the District of Columbia was asked to determine whether a homosexual plaintiff had sufficiently alleged a gender stereotyping claim where his complaint provided: 

[H]e is “a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,” that his “status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under [his supervisor] Mech’s supervision or at the [Library of Congress],” and that “his orientation as homosexual had removed him from Mech’s preconceived definition of male.”

Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (citations omitted). To be clear, the plaintiff in this case has alleged little more than the fact that he is a homosexual and that the Library of Congress discriminated against him because of his orientation. Nonetheless, the court denied the defendant’s motion to dismiss. In light of the executive branch’s position on protecting members of the LGBT community, see Michael D. Shear, “Obama Extends Marriage Benefits to Gay Couples,” N.Y. Times, June 20, 2014, it seems likely that this opinion will stand. 

Practical Tips and Concluding Thoughts
If nothing else, it is our hope that this article illustrates the difficulty in analyzing claims at the intersection of gender stereotyping and sexual orientation. Until Congress passes legislation like ENDA or further guidance emanates from the nine justices in Washington, D.C., this is not a problem that is easily solved. The question for practitioners is how to deal with the murkiness. 

For management counsel, the first step is to be fully apprised of existing state law. The states are relatively explicit in how they treat sexual orientation and gender identity discrimination. Know the law and, if such discrimination is prohibited, advise your client accordingly. In dealing with claims under Title VII, the situation is much more difficult. It seems to us that the employer could likely succeed in defending a gender stereotyping suit by simply stating that the employee was terminated because of his or her sexual orientation. While such a stance may prove wise in a legal courtroom, the court of public opinion may not be so forgiving. As such, it is, in our estimation, best to counsel your clients that, regardless of the state of the law, facing this type of litigation has severe consequences no matter the outcome. Employers should behave as though this type of discrimination is, in fact, illegal, whether or not ENDA (or any similar legislation) makes it on the books. 

Keywords: litigation, LGBT, employment discrimination, Employment Non-Discrimination Act, ENDA, Hobby Lobby, Religious Freedom Restoration Act, RFRA, Title VII 

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