Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity - April 2006 - Labor and Employment Law
| Publication year | 2006 |
| Pages | 63 |
| Citation | Vol. 35 No. 4 Pg. 63 |
2006, April, Pg. 63. Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity - April 2006 - Labor and Employment Law
April 2006
Vol. 35, No. 4 [Page 63]
Labor and Employment Law
Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity
by Mari Newman
This column is sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Column Editor:
John M. Husband of Holland & Hart LLP in Denver - (303) 295-8228, jhusband@hollandhart.com
This month's article was written by Mari Newman, Denver, a partner with Killmer, Lane & Newman, LLP - (303) 571-1000, mnewman@killmerlane.com. She specializes in employment law and civil rights, and participated in the drafting and passage of the 2001 and 2002 amendments to Denver's Anti-Discrimination Ordinance.
This article provides an overview of legal theories that may be used when representing victims of workplace discrimination or harassment on the basis of sexual orientation or gender identity.
Legal practitioners advocating on behalf of victims of discrimination or harassment on the basis of their status as gay, lesbian, bisexual, or transgender (collectively referred to as "GLBT") often face an uphill battle. Presently, no law has been enacted by either the federal or Colorado legislature that explicitly protects against workplace discrimination or harassment on the basis of sexual orientation or gender identity.(fn1) Existing civil rights laws traditionally have been interpreted by the courts to exclude coverage for such groups.(fn2) Accordingly, attorneys for GLBT victims of discrimination and harassment have carved out creative and innovative legal theories to secure redress for their clients. This article provides an overview of these legal theories, and discusses relevant statutes and case law of interest to practitioners representing GLBT clients.(fn3)
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 ("Title VII")(fn4) prohibits employment discrimination on the basis of "sex" and other protected characteristics. The term "sex," as defined by Title VII, does not include sexual orientation or gender identity.(fn5) Indeed, the Tenth Circuit's most recent declaration on the subject makes clear that Title VII does not apply to a claim of discrimination on the basis of sexual orientation, even in the case of a heterosexual plaintiff claiming harassment at the hands of a same-sex supervisor.(fn6) Nonetheless, victims of discrimination based on their GLBT status recently have had increasing success bringing creatively pled claims under Title VII.
Gender Non-Conformance
Perhaps the most successful of these claims have been those pled pursuant to a theory of discrimination for gender non-conformance, as articulated by the Supreme Court in Price Waterhouse v. Hopkins.(fn7) There, the Court held that Title VII was violated when the employer denied the plaintiff a promotion because she was perceived negatively for lacking stereotypically feminine character traits. Specifically, her supervisor had advised her to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."(fn8) This "gender non-conformance" legal theory has been successfully argued on behalf of gay and lesbian plaintiffs whose gender presentation is not defined by their biological sex.(fn9)
Notably, because Title VII condemns even those decisions based on a mixture of legitimate and illegitimate considerations, if a plaintiff can demonstrate that he or she was discriminated against "because of sex" as a result of sex stereotyping, evidence that the plaintiff also was discriminated against on the basis of sexual orientation has no legal significance under Title VII, even though sexual orientation itself is not a protected characteristic.(fn10) Courts have held as much even where the evidence of discriminatory animus includes overtly homophobic epithets, reasoning that these taunts disparage the plaintiff's masculinity or femininity.(fn11)
Relying on the Court's reasoning that "[d]iscrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII," the Ninth Circuit extended this legal theory to include protection for transgender people in Schwenk v. Hartford,(fn12) which applied the Gender Motivated Violence Act(fn13) in the case of a prisoner who was sexually assaulted by a guard. The court in Schwenk rejected the defendant's argument that the plaintiff's transexuality was not an "element of gender" but rather a "psychiatric illness."(fn14)
The "gender non-conformance" theory has since been successfully argued on behalf of numerous transgender plaintiffs in the employment context as well.(fn15) Notably, these cases have not turned on whether the plaintiff has undergone sex reassignment surgery; both pre- and post-operative transsexuals have prevailed using this legal theory.(fn16) As one court held, "[t]ranssexuals are not gender-less, they are either male or female and are thus protected under Title VII to the extent that they are discriminated against on the basis of sex."(fn17)
In addition to the prison environment addressed in Schwenk, GLBT plaintiffs discriminated against for gender non-conforming behavior likewise have prevailed in other non-employment contexts. These include cases of discrimination in public accommodations(fn18) and harassment in schools.(fn19)
However, this application of Price Waterhouse does not provide a legal claim in cases where there is no evidence that the GLBT plaintiff was discriminated against specifically because of gender non-conforming behavior or appearance, as opposed to sexual orientation more generally.(fn20) At least one court noted, though, that:
[c]onceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what "real" men do or don't do . . . real men don't date men.(fn21)
Nonetheless, this legal theory may not provide any legal recourse for a "feminine" lesbian or a "masculine" gay man, and in any event must be very carefully pled in a manner that makes clear that the discrimination or harassment was based on gender non-conformance, not sexual orientation or gender identity.
Title VII Retaliation
Notwithstanding the many legal opinions holding that sexual orientation and gender identity classifications do not fall within the Title VII definition of "sex," there have been successful claims of retaliation under Title VII brought by plaintiffs complaining of discrimination or harassment based on their sexual orientation and gender identity.(fn22) The advantage to litigating retaliation claims is that the plaintiff need prove only that his or her objection to the treatment led to an adverse employment action; the plaintiff is not required to prove the underlying complaint itself (that he or she was harassed or discriminated against).
The difficulty in pleading retaliation claims for harassment of GLBT plaintiffs is that courts may determine that the plaintiff's belief that Title VII prohibits the harassment or discrimination to which he or she objected is not necessarily "reasonable."(fn23) The Tenth Circuit recently suggested as much in dicta (in a non-binding, unpublished decision), noting: "given that sexual orientation discrimination is not a recognized cause of action under Title VII . . . it is far from clear whether a retaliation claim may be predicated upon a non-cognizable cause of action."(fn24)
Other courts have reached a contrary result, however, reasoning that the retaliation provision of Title VII protects employee opposition to practices that the employee reasonably believes are unlawful, not just to practices that actually are unlawful under Title VII. Holding otherwise might deter an employee "from reporting possible discrimination if she risked being discharged if the allegations - though...
To continue reading
Request your trial