What is Discrimination “Because of Sex”?

Discrimination.BLOGTitle VII of the Civil Rights Act of 1964 prohibits—among other things—private employers with 15 or more employees from discriminating against applicants and employees “because of sex.” As straightforward as this sounds, emerging issues around diversity and inclusion continue to raise questions as to what is, or is not, included under Title VII’s prohibition against sex discrimination. The Equal Employment Opportunity Commission, members of Congress, and at least one court are challenging historical notions that “because of sex” refers solely to gender.       

In 1989, the U.S. Supreme court held that sex discrimination prohibited by Title VII includes discrimination based on sex stereotypes and norms. Price Waterhouse v. Hopkins (U.S. 1989). Sexual orientation and gender identity, however, have routinely been held not to be included under Title VII’s prohibition against sex discrimination. Last year, the EEOC announced a national enforcement priority to combat sexual orientation and transgender discrimination in the private sector. Relying on its own interpretation of Title VII, as well as decisions in previous sex-stereotyping cases, the EEOC filed several lawsuits alleging sexual orientation discrimination under Title VII. One such lawsuit, EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. (D. Md. 2016), recently settled for an impressive $202,200, marking an historic moment for the LGBT community and energizing the EEOC’s enforcement efforts. In IFCO, the plaintiff, Ms. Boone, claimed she was harassed by her supervisor based on her sexual orientation when he made comments to her such as, “I want to turn you back into a woman” and “You would look good in a dress.” He also allegedly made sexually suggestive gestures to her. According to the complaint, Ms. Boone was discharged after she reported his behavior through an employee hotline. In its complaint, the EEOC argued that ultimately a line cannot be drawn between sex stereotyping and sexual orientation and, therefore, the latter must also be covered by Title VII’s prohibition on sex discrimination. It made the following arguments: “(1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex, because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based on such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.” It seems IFCO capitulated to the EEOC’s argument.       

Days after the IFCO settlement, the EEOC filed another lawsuit under Title VII’s prohibition on sex discrimination, this time against North Carolina-based Bojangles Restaurant. The complaint alleges Bojangles discriminated against a transgender female employee who, when off duty, visited the restaurant dressed in women’s clothing. She was allegedly told by a manager that she was never to enter the store dressed as a woman. She was later threatened with a transfer when she wore her hair in a braid to work, and an assistant manager allegedly said to her, “Boy, you need to pray.” The plaintiff claims she was terminated after she made a hotline complaint, while Bojangles contends she was terminated for misconduct and insubordination.  

Although a court did not opine on the IFCO case, and may or may not on the Bojangles matter, early indications suggest the EEOC could find support from the courts and Congress. In early July, a federal judge in New York reluctantly dismissed a claim of sexual orientation discrimination stating she was bound to do so by the 16-year-old precedent established in Simonton v. Runyon (2d Cir.2000). The court in Simonton unequivocally held that Title VII does not include sexual orientation within its protections. In her opinion, the New York judge asked the appeals court to overrule Simonton, stating, “Numerous cases have demonstrated the difficulty of disaggregating acts of discrimination based on sexual orientation from those based on sexual stereotyping … [and] … no coherent line can be drawn between these two sorts of claims.” A showing of support came days later when 128 democratic members of Congress filed amicus curiae (“friend of the court”) briefs lamenting the dismissal of the New York case and echoing the Judge’s plea to overrule Simonton.          

Although federal agencies, federal contractors, and almost half of the states already have prohibitions on sexual orientation and gender identity discrimination, clearly the issue is ripe for a national conversation and decision on the issue under Title VII. Employers subject to Title VII should be aware that these statuses are already protected under many state and local laws and may gain national protection in the near future. Accordingly, employers should continue to monitor the workplace to prohibit harassment and discrimination and take preventive steps by training employees on LGBT and diversity issues.