Sexual Orientation and Gender Identity

By on April 24, 2019

Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against workers on the basis of sex. These days, everyone understands that.  A critical question for several years has been whether discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination prohibited under Title VII.  The U.S. Supreme Court announced on April 22 that it will decide whether gay, lesbian, and transgender workers are expressly protected under federal law.

The Court granted review of three cases at one time.  The first two directly ask whether sexual orientation discrimination is prohibited under federal civil rights law; the third raises the question of whether transgender employees are similarly protected.

Since 2015, the EEOC has held that discrimination on the basis of sexual orientation is a form of sex discrimination and thus unlawful.  The EEOC has offered three different arguments: (i) that “sexual orientation” is inseparable from the term “sex”; (ii) that discrimination on the basis of sexual orientation is prohibited discrimination on the basis of association, inasmuch as discrimination on the basis of a spouse’s race would be prohibited racial discrimination; and (iii) discrimination on the basis of sexual orientation is a form of “sex stereotyping.”  Notably, there is conflict within the current administration on this point.  The U.S. Department of Justice has argued that sexual orientation is not discrimination on the basis of sex.  The Supreme Court’s decision to hear these issues likely will resolve this conflict.

Notably, in 2017, the Seventh Circuit became the first federal appeals court to adopt the EEOC’s reasoning and hold that Title VII prohibits discrimination on the basis of sexual orientation.  Less than a year later, the Second Circuit followed suit.  In contrast, the Eleventh Circuit, citing binding precedent, held that Title VII does not include discrimination on the basis of sexual orientation, thus making the question ripe for consideration by the Supreme Court.

With respect to discrimination on the basis of gender identity, there has also been division within the courts. Some courts have allowed cases alleging gender identity discrimination to proceed, most commonly comparing the matter to “sex stereotyping.”  Other courts have held that transgender status is simply not protected under Title VII. The EEOC has held since 2012 that discrimination on the basis of gender identity is unlawful under Title VII.  Again, however, the Department of Justice took the opposite view, arguing that “sex discrimination” under the law does not include discrimination on the basis of gender identity.

This is a complex situation for employers facing these issues. Hopefully the Supreme Court will provide clear guidance.

X