LGBT Bias Has the EEOC and Courts Talking About “Sex”

J.R. CoffeyManagement attorney J. Randall Coffey of Fisher & Phillips LLP traces the recent evolution of Title VII jurisprudence as questions surface on whether “sex” discrimination encompasses LGBT-related bias in the private-sector workplace.

Although Title VII's provisions don’t expressly bar discrimination based on sexual orientation and gender identity, the Equal Employment Opportunity Commission has issued federal-sector decisions recognizing protections for gay and transgender workers, and President Obama has prohibited LGBT discrimination by the federal government and federal contractors via Executive Order 13672

Whether federal courts considering private-sector Title VII claims will accept the agency’s broadened construction of discrimination “because of . . . sex” is uncertain. Coffey explored the topic in an interview with Bloomberg BNA following a panel discussion in Philadelphia co-sponsored by the American Bar Association’s Commission on Sexual Orientation and Gender Identity. 

Bloomberg BNA: Historically, how have courts addressed private sector workers’ LGBT-related employment discrimination claims under Title VII of the 1964 Civil Rights Act?

Coffey: For over fifty years now, the vast majority of courts addressing the issue of LGBT discrimination have held that Title VII’s protection against “sex” discrimination doesn’t extend to LGBT individuals based solely on their sexual orientation or transgender status. Rather, an LGBT employee still must prove that any alleged discrimination is “because of . . . sex.” 

One way in which some LGBT employees have been able to argue that they have a viable sex discrimination claim under Title VII is by providing evidence of sex stereotyping (treating someone differently for not meeting the “norms” or expectations associated with his or her gender), which the U.S. Supreme Court held in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954 (1989), can be “evidence that gender played a part” in an employment decision at issue.

The language in Price Waterhouse afforded LGBT employees (including, particularly, transgendered employees), who could present evidence that they were subjected to sex stereotyping, at least some degree of coverage under Title VII, although such claims remain difficult to prove.

Bloomberg BNA: How do precedential decisions holding such claims aren’t actionable under Title VII compare to the EEOC's 2015 and 2012 federal-sector cases (Baldwin v. Foxx, Appeal No. 0120133080, 7/15/15; Macy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, Appeal No. 0120120821, 4/20/12) interpreting the scope of Title VII’s sex discrimination provision?

Coffey: The court decisions from both the courts of appeals and the district courts, for the most part, weren’t presented with the arguments that the EEOC now is pressing in its Baldwin and Macy decisions. For example, in Baldwin, the EEOC specifically held that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” contrary to its own previous positions. 

The court decisions addressing this issue largely rely on the fact that Title VII’s statutory language refers only to “sex” and doesn’t include “sexual orientation” as part of its coverage. Earlier decisions relied on the statute being limited to discrimination based on the individual’s biological sex, i.e., being male or female. That concept subsequently gave way to the broader construct of sex as including gender, i.e., the various aspects of being male or female. 

In Macy and then subsequently in Baldwin, the EEOC has pressed the construct of “sex” far beyond anything that the U.S. Supreme Court has stated in either Price Waterhouse or Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 76 FEP Cases 221 (1998), which found that same-sex harassment was actionable under Title VII so long as there was evidence that the conduct was “because of . . . sex.”

All of the courts of appeals that have addressed the issue have held that Title VII doesn’t encompass discrimination on the basis of sexual orientation or transgender status per se. Until and unless there is a decision to the contrary by one of those full courts of appeals (or the federal supreme court holds otherwise), the current law in each of those courts of appeals will stand. It isn’t clear at this point how the courts will receive the EEOC’s recent decisions.

Bloomberg BNA: It’s unclear whether federal courts will defer to EEOC’s new views regarding Title VII coverage. What cases are particularly noteworthy for employers as coverage issues percolate in the lower courts?

Coffey: There are a number of cases now in the lower courts raising the issues and making the arguments advanced by the EEOC in Baldwin and Macy. In the context of transgender employees or applicants, many courts have found that cognizable claims exist on the sex stereotyping approach set forth in Price Waterhouse

There are few cases, however, addressing the EEOC’s new sexual orientation arguments. In October, a district court adopted the EEOC’s position in Baldwin, finding that sexual-orientation claims are cognizable under Title VII (Isaacs v. Felder Servs., LLC, 128 FEP Cases 365, 2015 BL 356415, M.D. Ala., No. 2:13-cv-00693, 10/29/15). 

It seems unlikely, however, that the courts will afford deference to the EEOC’s new statutory interpretation of Title VII under the U.S. Supreme Court’s decision in Skidmore v. Swift & Co. given the EEOC’s change of position so many years after the enactment of the statute—particularly since the agency previously had taken a contrary position. 

Coffey’s paper, Right Result, Wrong Path? The Meaning of "Sex" Under Title VII, is available on the website of the ABA Section of Labor and Employment Law. 

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