In the wake of the Supreme Court’s decision regarding gay marriage, there is no doubt the legal landscape for the LGBT community is changing. A question being asked more and more is whether or not sexual orientation is a protected class under Title VII of the Civil Rights Act of 1964, thereby prohibiting employers from discriminating against an employee because of his or her sexual orientation. Our Ohio Employment Lawyers receive calls and questions on this issue all the time. If you have any questions or would like to speak to us about this, please contact us https://www.thefriedmannfirm.com/contact-us/.
History of Title VII, Discrimination Based on “Sex” and Transgendered Individuals
In the 1970’s and 1980’s, courts had a pretty narrow view of Title VII. For example, in 1979, the Ninth Circuit rejected an argument that discrimination against a homosexual was sex discrimination under Title VII. The Fifth Circuit came to a similar conclusion when it held that termination because of homosexuality was not protected by Title VII. As time moved forward, courts began taking a closer look at Title VII and began interpreting “sex” more broadly.
In 1984, the Seventh Circuit heard a case involving a transgender plaintiff, Ulane v. Eastern Airlines. Kenneth Ulane was hired by Eastern Airlines as a pilot and eventually took leave to have gender reassignment surgery. When Kenneth returned to work as Karen, she was terminated. The Court found that Karen was not discriminated against because she was female and rejected her Title VII claim, holding that Title VII does not protect transgendered individuals.
Courts, such as the Sixth Circuit that emcompasses Ohio, continued to hold that homosexuals were not protected by Title VII. For example, an employee sued his employer, the United States Postal Service, after he was teased and physically assaulted because his co-workers thought he was gay. The Court said too bad- although these comments are cruel, they are not unlawful.
Expansion of the Definition of “Sex” as it Relates to Title VII
A few years later, the Supreme Court expanded the definition of “sex” when it decidedPrice Waterhouse v. Hopkins. Hopkins was a female manager who was denied a partnership interest because she exhibited masculine traits. Price Waterhouse informed her that she could only increase her changes for a partnership interest by walking and talking more femininely, wearing makeup and taking a course at charm school, among others. The Court held that Hopkins was discriminated against because of sex and the theory of “sex or gender stereotyping” emerged. The Court said, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Price Waterhouse was the first case to define the word “sex” as both biological sex and gender, which includes “socially acceptable” roles and behaviors that define a woman as a woman and a man as a man. If the employer takes any of these roles and behaviors into consideration, they have taken gender into account.
Gender Stereotyping Theory Emerges
After the Price Waterhouse decision, other courts began to recognize the gender stereotyping theory as it relates to discrimination claims under Title VII. For example, the Ninth Circuit found that the unrelenting barrage of same sex verbal abuse by male co-workers against the plaintiff constituted sex discrimination under Title VII. The Seventh Circuit came to a similar holding in Doe v. Belleville, where the plaintiff endured harassment from male co-workers based on his gender.
Next, the Supreme Court decided Oncale v. Sundowner Offshore Services, Inc. The plaintiff, Joseph Oncale, was subjected to sex-related, humiliating actions and comments from his make co-workers in the presence of the rest of the crew. The actions included physical assaults in a sexual manner and even a threat of rape. Oncale filed a claim of sex discrimination against his employer after he complained and felt the situation was not dealt with appropriately. The Court held that Title VII also protects same-sex harassment between heretosexual men.
Protection Extended to Transgendered Plaintiffs
in 2004, the Sixth Circuit, in a case from Ohio, was the first federal court to apply the gender stereotyping theory to transgendered plaintiffs in Smith v. City of Salem. Plaintiff Smith worked for the City of Salem Fire Department. When he began exhibiting a more feminine appearance, he spoke with his supervisor about his gender identity disorder. The supervisor promised he’d keep the conversation confidential but he did not and the city began to hatch a plan to terminate his employment, based on his gender identity disorder. The Sixth Circuit held that Smith had a valid claim under Title VII “because of sex” as a result of his non-conforming gender behavior. Specifically, the Court said, “discrimination against a plaintiff who is a transsexual- and therefore fails to act and/or identify with his or her gender- is no different from the discrimination directed against Hopkins in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman.”
Does This Protection Extend to Homosexuals?
The Sixth Circuit in Smith specially said no. It also said no in Vickers v. Fairfield Medical Center, when the Court held Title VII does not extend to protect sexual orientation. This is where the analysis gets very murky because gender stereotyping cases usually involve ideas about how a man or woman should act and if he or she does not act that way, the discussion almost always turns to homosexuality and society’s views on gender behavior. The Court has commented that “gender stereotyping claims should not be used to bootstrap protection for sexual orientation into Title VII.” If the conduct directed toward the employee is based on his or her gender non-conformity, is it usually because that person is perceived as or is homosexual, bisexual or transgender so an argument can and should be made that Title VII protects homosexuals as well. The Court draws a tenuous line between homosexuality and gender non-confortmity when in the eyes of society, the two usually go hand in hand. If gender stereotyping is protected, homosexuality should be as well.
It looks like we are moving toward homosexuality being protected under Title VII because the EEOC issued a decision, Macy v. Holder, that is binding on all federal agencies that says, “discrimination based on gender identity, change of sex and/or transgender identity” is discrimination because of “sex” under Title VII. The EEOC is now also accepting Charges of Discrimination for sex discrimination claims brought by lesbian, gay and bisexual individuals.
There have been some courts recently that have actually recognized Title VII claims based on sexual orientation. (Find Terveer v. Billington here, from Gender Identity Watch- http://genderidentitywatch.com/2014/04/03/terveer-v-billington-usa/ and Hall v. BNSF Railway http://www.clearinghouse.net/detail.php?id=13501).
Lastly, the Seventh Circuit initially dismissed the plaintiff’s Title VII claims for sex discrimination based on sexual orientation in Muhammad v. Caterpillar, Inc. (full text of opinion here- http://law.justia.com/cases/federal/appellate-courts/ca7/12-1723/12-1723-2014-09-09.html). However, the EEOC filed an amicus brief seeking rehearing on the issue. The Seventh Circuit panel denied the petition for rehearing but issued an amended opinion removing the original holding that Title VII does not cover sexual orientation discrimination.
Is homosexuality officially protected under Title VII? The answer right now in the Sixth Circuit is no. However, it appears other Courts and the EEOC are recognizing sexual orientation as a protected class under Title VII so hopefully it is only a matter of time before a decision such as this is issued by the Sixth Circut and is binding on Ohio federal courts.
If you have questions about this case or would like to discuss a situation similar to this with our Cleveland employment lawyers, please contact us today.