Although Title VII of the Civil Rights Act of 1964 (Title VII) does not explicitly include sexual orientation or gender identity, the EEOC and some courts have said that sex discrimination includes discrimination against an applicant or employee who does not conform to traditional gender stereotypes.
In order to understand the basis for bringing such cases under Title VII, it’s important to first understand some basic terminology regarding employees who identify as lesbian, gay, bisexual or transgender (LGBT):
- Gender: refers to the attitudes, feelings, and behaviors that a given culture associates with biological sex.
- Sex: refers to a person’s biological status (genitalia, chromosomes, and reproductive systems).
- Sexual Orientation: a person’s attraction to another person.
- Gender Identity: one’s sense of self as male, female or transgender.
- Gender Expression: the way a person acts to communicate gender within a given culture.
- Transgender: a broad term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth. Many transgender individuals desire to live as a gender different than that assigned to them at birth, but not all whose appearance or behavior is gender-nonconforming will identify as a transgender person. For example, an individual assigned the sex of male at birth and identifies as female may identify as a transgender woman. However, many people who fit this description may simply identify as a woman, consistent with their own gender identity. The best practice is to ask the person how they would like to be identified.
- Gender Transition: refers to the continuum of actions a person may take to modify one’s gender expression and/or physical characteristics to match one’s gender identity.
Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual Clients, 67(1) Am. Psychol. 10 (2012).
How are LGBT cases brought under Title VII? Title VII states it is unlawful for an employer “to discriminate against any individual with respect to . . . employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court established in Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989), that “an employer may not take gender into account in making an employment decision.” The case also established that discrimination based on gender stereotypes was sex discrimination actionable under Title VII.
Many courts and the EEOC have applied the theory of gender stereotyping in analyzing these claims. The most common Title VII frameworks used to pursue LGBT claims have been:
- Sex/Gender Stereotyping: social expectations about the “appropriate” appearance, mannerisms, and behavior based on a person’s sex.
- Gender Non-conforming: not conforming to those stereotypes.
LGBT discrimination claims brought under Title VII have arisen most commonly in the context of harassment, coworker discomfort, grooming standards/dress codes, name changes and record keeping, and restroom/locker room access.
Some key cases include:
- Nichols v. Azteca Restaurant Ent., Inc., 256 F.3d 864, 874 (9th Cir. 2001)(finding that sexual orientation discrimination is often linked to discrimination based on failure to conform to gender norms); and
- Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004)( “discrimination against a plaintiff who is transsexual – and therefore fails to act like and/or identify with his or her gender – is no different from the discrimination directed against Ann Hopkins in Price Waterhouse.”).
Key decisions by the EEOC in the federal employment sector include:
- Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011) (EEOC holding that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII); and
- Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (EEOC holding that gender identity discrimination is discrimination because of sex and therefore covered under Title VII).
As of this writing, neither the Supreme Court nor the federal circuit courts have yet to find that sexual orientation discrimination is protected under Title VII absent an accompanying claim based on gender-nonconformity. For example, the Third Circuit has held that sexual preference is not enough without an allegation of discrimination based on non-conformity. See Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009).
Case law continues to develop in the application of Title VII to discrimination claims based on gender identity and sexual orientation.