Federal Caselaw Regarding Employment Discrimination Based on Sexual Orientation May Offer a Guide for Claims of Gender Identity and Gender Expression Discrimination

gender equalityThe rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

Last year, the Seventh Circuit noted in a ruling that the EEOC and many federal courts have stated that they “do not condone” sexual orientation discrimination. It ultimately held, however, that it was bound by precedent until “a Supreme Court opinion or new legislation” comes along. Hively v. Ivy Tech Comm. Coll., South Bend, 830 F.3d 698, 718 (7th Cir. 2016). The court acknowledged the difficulty of “disentangling gender discrimination from sexual orientation discrimination” and pointed out that most cases “likely…stem from employers’ and co-workers’ discomfort with…failure to abide by gender norms.” Id. at 709.

After an en banc rehearing, the Seventh Circuit reversed this decision, citing the three-judge panel’s discussion of “gender nonconformity” in light of decisions like Price Waterhouse. 853 F.3d 339 (7th Cir. 2017). The U.S. Supreme Court has yet to rule on this issue, but Hively joins a growing body of caselaw that could significantly affect federal law involving both sexual orientation and gender identity and expression discrimination.

The sex discrimination attorneys at Phillips & Associates advocate for the rights of job seekers, employees, and former employees in New York City. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case.

More Blog Posts:

Do New York Employment Laws Prohibit Firing an Employee for Not Being Attractive? New York Employment Attorney Blog, March 24, 2017

Federal Court Rules on Gender Identity Employment Discrimination Claim, New York Employment Attorney Blog, December 8, 2016

General Services Administration Issues New Regulation Regarding Transgender Rights in the Workplace, New York Employment Attorney Blog, November 16, 2016

Photo credit: 3dman_eu [CC0 1.0], via Pixabay.

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