Joel Dillard & Associates

As I wrote about yesterday, the EEOC has taken a strong position against sexual orientation and gender identity discrimination in the workplace. For federal employees, this position is the controling law, since the other agencies are subject to the views of the Office of Federal Operations in the EEOC.

But for people working in the private sector - or for state governments - the views of the EEOC are not enough, and the courts must also be convinced. Although for most agencies, the courts usually follow the agency's views on the law they enforce (what is called "Chevron deference") the EEOC is different, and, basically, the courts will consider the EEOC's position convincing only if they find it convincing (what is called "Skidmore deference").

So, what have the courts said about employment discrimination based on sexual orientation or gender identity? The answer may surprise you.

Transgender Protection

Interestingly, transgender people appear to be doing better than gay, lesbian, and bisexual people in this respect. Some circuits appear to have accepted the argument that discrimination against a transgender person can be a form of sex stereotyping under the Supreme Court's decision in Price Waterhouse v. Hopkins. See, e.g., Glenn v. Brumby, 663 F. 3d 1312, 1315-21 (11th Cir. 2011).

But the question isn't settled. For example, the Tenth Circuit in Etsitty v. Utah Transit Authority, 502 F. 3d 1215 (10th Cir. 2007), after holding that transgender is not protected per se, danced around the question of whether transgender could be protected as a from of stereotyping discrimination. The court ultimately held that the employer was lawfully permitted to enforce a rule about men's or women's bathrooms based on the birth sex of the employee.

The Fifth Circuit, meanwhile, which covers Mississippi, does not appear to have directly considered the question. In a footnote to an absolutely riveting decision, the en banc Fifth Circuit recently cited Glenn v. Brumby with approval - which is a very good sign. EEOC v. Boh Bros. Const. Co., LLC, 731 F. 3d 444 (5th Cir. 2013). But that case - which should have been an easy one for the court, if it really appreciated the significance of Price Waterhouse v. Hopkins - nonetheless garnered a dissent joined by six judges, and it is by no means clear what the court would do with a transgender stereotyping discrimination case.

Nor are all transgender people and allies entirely happy with the theory behind these cases. It requires them to assert what Mary Anne Case has called a thin view of their sex - i.e., that for Title VII purposes their sex is the sex assigned to them at birth. The discrimination is then based on failure to conform to gender stereotypes about how a person assigned that sex at birth should behave. (I've previously used this thin view here, and here.) I find Mary Anne Case's view of this question particularly compelling:

My own longstanding and unshaken view, driven at least as much by practical lawyering considerations as by ideological commitments, is that a thin definition of sex in law is not only more normatively attractive but is, in general, a more effective way to achieve legal protection for the broadest possible range of sexual identities, gendered traits, and the individuals manifesting them. . . . This thin, stripped down view of legal sex may not feel true to an individual’s full and rich sense of sexual and gender identity. . . . But the thin view of sex under Title VII, like a thin view of sex in U.S. constitutional law, opens the possibility of legal protection to gender benders of all stripes, regardless of their sex; regardless of whether they can or do make an identitarian claim as transgendered . . . or . . . gay; and regardless of how mild or how extreme, how occasional or how systematic, their transgression of conventional gender norms may be. This thin view of sex, interpreting the words of Title VII to mean that an employee’s sex must be irrelevant to employment decisions, underlies the Hopkins decision, which therefore stands ready to be mobilized both by those who claim a particular sexual identity and those who do not, as well as by those who have one attributed to them by those who discriminate against them in employment and those who do not.

(To read the full article, click here. For a contrary view, click here.)

Sexual Orientation bootstrapping and loopholes in Title VII protection

Now, given what the courts have said about transgender, I would think that it would seem pretty obvious that sexual orientation discrimination would be unlawful stereotyping also. It is, after all, stereotyping about the sex of the person the employee should have sex with, based on the employee's sex. But the Courts have taken a surprisingly hostile view of this claim. The following mind-blowing analysis, from the Second Circuit, is characteristic:

The law is well-settled in this circuit and in all others to have reached the question that.... Title VII does not prohibit harassment or discrimination because of sexual orientation. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir.2000). . . . Realizing that discrimination based upon sexual orientation is not actionable under Title VII, Dawson avails herself of the gender stereotyping theory of Title VII liability according to which individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class. . . . That is, individual employees who face adverse employment actions as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII.

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. Howell v. North Cent. Coll., 320 F.Supp.2d 717, 723 (N.D.Ill.2004). Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII. Simonton, 232 F.3d at 38. See also Lex K. Larson, 10 Employment Discrimination § 168.10[1] (2d ed. 2003) (It is not uncommon for plaintiffs to fall short in their Title VII pursuits because courts find their arguments to be sexual orientation (or other unprotected) allegations masquerading as gender stereotyping claims.); Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003) (counseling gay plaintiffs bringing claims under Title VII[to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality). . . .

Similarly, district courts in this Circuit have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes. See Martin v. New York State Dep't of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y.2002) (The torment endured by Martin ... [t]he name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.); Samborski v. West Valley Nuclear Servs., Co., 2002 WL 1477610, at *3 n. 11 (W.D.N.Y. June 25, 2002) (stating in dicta that although being called a `lesbian' [may be] based not on a perception of true sexual orientation, but rather as a means of denigrating a person because of sexual stereotype, plaintiff's gender stereotyping claim is somewhat undermined to the extent that it rests upon being called a lesbian); Trigg v. New York City Transit Auth., 2001 WL 868336, at *6 (E.D.N.Y. July 26, 2001) (rejecting gender stereotyping claim because plaintiff's Amended Complaint is rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality), aff'd without opinion, 50 Fed.Appx. 458 (2d Cir.2002); cf. Kay v. Independence Blue Cross, 2003 WL 21197289, at *5 (E.D.Pa. May 16, 2003) (holding that gay male plaintiff has shown that he was subjected to adverse treatment because of his co-workers['] perceptions that he was a `miss prissy' or less than [a] `real man.' As such, there is affirmative evidence that the harassment was related to perceptions about Mr. Kay's masculinity, rendering the conduct gender stereotyping actionable under Title VII.); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D.Or.2002) (lesbian plaintiff stated Title VII claim by alleging discrimination based upon her failure to conform to supervisor's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.).

In this way of looking at things, discrimination against a masculine woman is illegal if the woman is either straight or an f-to-m transexual, but not if she is a lesbian - otherwise, a lesbian person might bootstrap and accidently benefit from the basic protections of Title VII enjoyed by everyone else! This is, in essence, a loophole in Title VII, excluding gay and lesbian people from basic Title VII protections.

In this context it seems ironic that a homosexual that sexually harasses a same-sex employee is liable for sexual harassment under the Supreme Court's unanimous decision in Oncale. Though I certainly agree with Oncale, I can't help but notice that the combination of Oncale and the cases above seems designed to place homosexuals in the worst possible position under the law, without any regard to the logic.

The tension we see in this caselaw provides a mechanism for a change of course. The logical view is that any employer action which differentiates between the sexes is unlawful sex discrimination. Propounding this view is a part of my goal as a litigator.

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