A Primer on Legal Protections for LGBT Employees: Past, Present, and Future (Part 1)

Earlier this year, the U.S. Supreme Court agreed to consider a trio of cases presenting the question of whether Title VII’s protections are broad enough to forbid discrimination on the basis of sexual orientation and gender identity. The cases will be argued in the fall, with decisions likely issued by June 2020. Until then, employers are left to grapple with the status quo—a continuously developing, and sometimes confusing, patchwork of protections for gay, lesbian, bisexual, and transgender employees. This three-part series discusses the development of protections for LGBT employees, explains the current status of such protections, and concludes by discussing what is at stake for employers with respect to the Supreme Court’s upcoming guidance on this issue.

The core issue: What does “sex” mean?

In 1964, President Lyndon Johnson signed the landmark Civil Rights Act into law. Title VII of the Act makes it unlawful for an employer to discriminate against an employee because of “such individual’s race, color, religion, sex, or national origin.”

The question, as it relates to whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity, turns on the definition of “sex.” The term is not defined in Title VII, and there is no relevant legislative history. “Sex” was added to Title VII only days before the bill was passed in the House, without prior hearing or debate on the amendment.

Lacking legislative guidance, the courts, for over five decades, have repeatedly been called on to construe the limits and contours of Title VII’s reference to “sex,” including in response to discrimination claims premised on sexual orientation and gender identity.

Courts have historically rejected sexual orientation and gender identity discrimination claims.

The first courts to rule on the meaning of “sex” for purposes of Title VII concluded uniformly that the term should be given its common, dictionary meaning. In 1979, the Ninth Circuit, interpreting Title VII according to its plain language, held that discrimination against an employee on the basis of sexual orientation was not unlawful sex discrimination. See De Santis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 329 (9th Cir. 1979) (“Giving the statute its plain meaning, this court concludes that Congress had only the traditional notions of ‘sex’ in mind” with respect to Title VII). Later the same year, the Fifth Circuit agreed, holding that discharging an employee “for homosexuality is not prohibited by Title VII.” Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).

Throughout the 1970s and 1980s, most courts had little trouble reaching the conclusion that sexual orientation and gender identity were well beyond the reach of Title VII’s prohibition on sex discrimination. For these courts, this conclusion was compelled by the absence of any indication that Congress intended “sex” to have other than its traditional, dictionary definition. As the Seventh Circuit explained in reversing a district court decision finding that a pilot who was hired as a male and then fired after undergoing sex reassignment surgery could assert a viable claim under Title VII:

It is a maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning. The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder … a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born. The dearth of legislative history on [Title VII’s prohibition on sex discrimination] strongly reinforces the view that the section means nothing more than its plain language implies.

Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir. 1984).

Unable to pursue claims based on sexual orientation or gender identity, allegedly aggrieved LGBT employees have resorted to other theories of discrimination—most commonly, sex stereotyping and same-sex sexual harassment.

In 1989, the U.S. Supreme Court issued its decision in Price Waterhouse v. Hopkins, expanding the meaning of “sex” under Title VII to include gender—i.e., socially constructed norms ascribed to men and women. The Hopkins Court found that a female partner candidate in a large consulting firm stated a viable sex discrimination claim by showing that she was denied promotion to partner based on her failure to conform to stereotypes about the way she, as a woman, should look and act:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group …. An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.

Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).

About a decade later, in 1998, the Supreme Court again expanded the scope of Title VII’s prohibition on sex discrimination, this time holding in Oncale v. Sundowner Offshore Services, Inc. that the prohibition extends to same-sex sexual harassment. In a unanimous opinion, Justice Scalia explained that legislative intent does not in all cases delimit the parameters of Title VII’s protections:

[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it ultimately is the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).

Even though the plaintiffs in Hopkins and Oncale were straight, the legal theories recognized in those cases made it possible for certain LGBT plaintiffs to assert viable claims under Title VII. For example, in 2009, the Third Circuit reversed a district court’s grant of summary judgment in an employer’s favor where the plaintiff, a gay man, produced evidence that he was terminated because he was effeminate and did not fit in well in a stereotypically male work environment. The Third Circuit found it significant that the plaintiff conceded that he was not masculine—testifying, among other things, that he had a high voice and that he sat “the way a woman would sit”—and that there was evidence that his co-workers taunted him about this, calling him “Princess” and “Rosebud.” See Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009). These facts, the Third Circuit found, were not overshadowed by the plaintiff’s sexual orientation:

[The employer] cannot persuasively argue that because [the plaintiff] is homosexual, he is precluded from bringing a gender stereotyping claim. There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.

Id. at 292.

In 2013, the Fifth Circuit issued a significant decision illustrating the potential interplay between the Supreme Court’s decisions in Hopkins and Oncale. In E.E.O.C. v. Boh Bros. Construction Co., the Fifth Circuit, sitting en banc, recognized that a plaintiff may state a viable claim of sex discrimination under Title VII when he is harassed based on the harasser’s perception that he does not conform to traditional gender stereotypes. See 731 F.3d 444 (5th Cir. 2013). In reaching this conclusion, the Fifth Circuit held that the relevant inquiry with respect to the unlawfulness of the harassment is not whether the plaintiff actually fails to conform to gender norms, but instead, whether the harasser subjectively viewed the harasser as failing to conform.

The bottom line for employers

Since shortly after it was passed, LGBT plaintiffs have attempted to use Title VII to seek redress for alleged employment discrimination based on sexual orientation and gender identity. In the earliest cases, courts had little trouble finding that Title VII did not extend to sexual orientation or gender identity. Many courts continue to adhere to this traditional, narrow interpretation of Title VII. This history has led many employers to believe, erroneously, that LGBT employees cannot assert actionable claims for discrimination. But in actuality, courts have recognized for decades viable theories of discrimination useful to certain LGBT plaintiffs—particularly those who do not conform to gender stereotypes.

LGBT plaintiffs continue to refine the arguments that they make in support of claims asserted under Title VII, and courts in recent years have become increasingly willing to closely consider these arguments. Part 2 of this series will examine more recent cases providing further protection under Title VII for LGBT employees, including recent circuit court cases holding that Title VII’s prohibition on sex discrimination includes prohibitions on discrimination based on sexual orientation and gender identity. See Hively v. Ivy Tech. Comm. College, 853 F.3d 339 (7th Cir. 2017).