A Primer on Legal Protections for LGBT Employees: Past, Present, and Future (Part 2)

This is the second installment in a three-part series examining legal protections for gay, lesbian, bisexual, and transgender employees, written in anticipation of the U.S. Supreme Court’s likely upcoming decision on whether Title VII’s protections are broad enough to forbid discrimination based on sexual orientation and gender identity. Part 1 of this series examined the early development of the decisional law on the foundational issue—whether the term “sex” as used in Title VII may properly be construed to mean something more than whether a person is, as a matter of biology, a man or a woman. This Part of the series examines the current state of legal protections for LGBT workers. The series will conclude in Part 3 with analysis of what employers may expect when the Supreme Court addresses this issue, likely by June 2020.

Frustrated by limited court victories, advocates for LGBT employment rights sought to secure protections through the legislative process.

As Part 1 of this series explains, courts historically have rejected LGBT plaintiffs’ efforts to expand the reach of Title VII to provide protection against discrimination on the basis of sexual orientation or gender identity. In response, LGBT-employment-rights advocates pursued, and frequently secured, legislative change at the federal, state, and local levels.

  • Federal Legislative Efforts. The Equality Act was first drafted by two Democrat U.S. Representatives from New York in 1974. The legislative proposal sought to add sexual orientation to the protected classes identified in the Civil Rights Act of 1964, thereby prohibiting discrimination based on this characteristic in access to federal programs, housing, employment, and access to public accommodations. The original bill died shortly after it was proposed, but various versions, including the narrower, employment-focused Employment Non-Discrimination Act (“ENDA”), have been reintroduced in every Congress since 1994, save one. In 2007, gender identity protections were added to the proposed bill for the first time. ENDA was most recently reintroduced, in its broader form as the Equality Act, this year, but it is unlikely to pass in both the House of Representatives and the Senate.
  • State Legislative Efforts. Shortly after the Equality Act was first proposed, Pennsylvania became the first state to ban public sector employment discrimination on the basis of sexual orientation in 1975. Not long after, in 1982, Wisconsin became the first state to ban both public and private sector employment discrimination based on sexual orientation. In the time since, advocates for employment protections for LGBT workers have focused efforts on state-law legislative reform, finding that protections are easier to secure in more liberal states, such as those on the West and East Coasts. Currently, the District of Columbia, Guam, Puerto Rico, and the following twenty-one states have statutes that protect against both sexual orientation and gender identity discrimination in both public and private employment: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington.
  • Local Legislative Efforts. More than 400 U.S. cities and counties prohibit discrimination on the basis of sexual orientation and gender identity for both public and private employees. Most, but not all, of these cities and counties are located in states that have a statewide non-discrimination law for sexual orientation or gender identity. Texas is among a handful of states that buck this trend. It has no statewide protections for LGBT employees, but at least some form of protection has been enacted in several counties (e.g., Bexar, Dallas, and Walker) and numerous cities (e.g., Austin, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, and San Antonio).

An EEOC ruling leads to court to reconsider earlier precedent narrowly construing the meaning of “sex” under Title VII and paves the way for federal appellate court decisions holding that Title VII’s protections extend to LGBT plaintiffs in private employment.

Despite state and local legislative victories, LGBT rights advocates, seeking consistency in protections across the country, continued to push courts to interpret Title VII as prohibiting discrimination on the basis of sexual orientation and gender identity. The foundation for this expanded interpretation of Title VII was laid by the U.S. Equal Employment Opportunity Commission (“EEOC”) in 2015 when it issued its decision in Baldwin v. Foxx.

In Baldwin, a U.S. Department of Transportation (“DOT”) employee asserted a Title VII failure-to-promote claim based on his status as a gay man. Because the claim was asserted by a federal employee, once it was processed and dismissed by the DOT, the employee appealed to the EEOC, acting in its quasi-judicial capacity, for review. The EEOC reversed the DOT, holding that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” In reaching this holding, the EEOC rejected the historical body of decisional law concluding that LGBT plaintiffs could find protection under Title VII on account of sexual orientation only when such orientation was associated with gender expression transgressing commonly held stereotypes about masculinity or femininity and instead concluded that sexual orientation discrimination is sex discrimination for purposes of Title VII for three primary reasons:

  • First, the EEOC noted that sexual orientation cannot be defined or understood without reference to sex. For example, a “gay” man is “gay” because he is a man who is physically or emotionally attracted to other men. For the EEOC, this “inescapable link” between sexual orientation and sex is adequate to bring sexual orientation discrimination within the purview of Title VII.
  • Second, the EEOC found that sexual orientation is associational sex discrimination prohibited by Title VII: “That is, an employee alleging discrimination on the basis of sexual orientation is alleging this his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.”
  • Third, the EEOC found that sex orientation discrimination is per se impermissible sex stereotyping because such stereotyping is “often, if not always, motivated by a desire to enforce heterosexually defined gender norms.” In other words, a “harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real’ men should date women, and not other men.”

Baldwin is significant not because it changed the legal landscape with respect to sexual orientation and gender identity discrimination for private employers—the EEOC’s holding in the case is binding on with respect to federal employees. Instead, Baldwin’s importance lies in its near wholesale adoption of sophisticated and nuanced theories of discrimination previously jettisoned by federal and state courts interpreting Title VII. And because the EEOC is the federal agency responsible for administering and enforcing Title VII, its view of Title VII’s reach in this context, though not binding on any federal court, caused federal courts facing the same issues to reevaluate the “well established” precedent rejecting sexual orientation and gender identity discrimination claims out of hand.

The outsized influence of Baldwin on the development of the law on meaning of “sex” under Title VII is perhaps most visible in the fact that, only two years after it came down, in 2017, the Seventh Circuit became the first federal court of appeals to rule that Title VII prohibits sexual orientation discrimination when it issued its decision in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc). Hively’s analysis borrows heavily from Baldwin, particularly with respect to the concepts of associational discrimination and, even more directly, the argument that sexual orientation discrimination is per se sex stereotyping:

Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and all other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.

The reasoning underlying the EEOC’s decision in Baldwin also heavily influenced the Second Circuit when, in 2018, its joined the Seventh Circuit in interpreting Title VII to prohibit discrimination on the basis of sexual orientation. Its decision in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) adopts all three key planks of Baldwin’s holding—that sexual orientation discrimination is sex discrimination outlawed by Title VII because: it is necessary to know a person’s sex to know her sexual orientation, sexual orientation discrimination is associational discrimination based on sex, and sexual orientation discrimination is impermissible sex stereotyping based on the norm that men should partner romantically with women and women should partner romantically with men.

The decisional law emanating from Baldwin has created a split between federal appellate courts. Most circuit-court-level precedent—as illustrated by the Eleventh Circuit’s 2018 recent decision in Bostock v. Clayton County Board of Commissioners, 723 Fed. App’x 964 (11th Cir. 2018)—holds that Title VII’s reference to “sex” is not broad enough to prohibit sexual orientation and gender identity discrimination. A small minority, as discussed above, have held otherwise. Based on this split, the U.S. Supreme Court is poised to resolve Title VII’s scope, both with respect to sexual orientation and gender identity, when it rules in the upcoming term on appeals in three consolidated cases:

  • Zarda, 883 F.3d at 108 (“[W]e now hold that Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.’ To the extent the our prior precedents held otherwise, they are overruled.”)
  • EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 600 (6th Cir. 2018) (“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”)
  • Bostock, 723 Fed. App’x at 965 (“Moreover, the district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans forecloses Bostock’s claim.”)

The bottom line for employers

In recent years, based on legislative developments, increased focus by the EEOC, and changes in public opinion generally, courts have become increasingly willing to carefully consider, and in some cases to accept, sophisticated and nuanced arguments equating sexual orientation and gender identity discrimination with sex discrimination prohibited by Title VII.

The pace of the development of this area of the law has increased significantly. In only the past two years, several federal appellate courts have created inconsistency with respect to the protections afforded by Title VII in different parts of the country. Employers may be liable in the Second (Connecticut, New York, and Vermont), Sixth (Kentucky, Michigan, Ohio, and Tennessee), Seventh (Illinois, Indiana, and Wisconsin) Circuits for personnel actions that would not support a viable Title VII claim in other parts of the country. As a result of this inconsistency, and the uncertainty surrounding further development of the law in this area, employers—especially employers that operate nationally—should be particularly thoughtful and careful in approaching LGBT-related discrimination issues.

Employers also should be on the lookout for guidance from the U.S. Supreme Court, which is expected by June 2020. Part 3 of this series will explore what employers can expect from the Supreme Court in its upcoming and much anticipated decision.