Creative Advocacy in Employment Discrimination Cases Involving Sexual Orientation and Gender Identity
| Publication year | 2011 |
| Pages | 45 |
2011, March, Pg. 45. Creative Advocacy in Employment Discrimination Cases Involving Sexual Orientation and Gender Identity
March 2011
Vol. 40, No. 3 [Page 45]
Labor and Employment Law
Labor and Employment Law articles are sponsoredby 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.
Coordinating Editor
John M. Husband, Denver, of Holland and Hart LLP-(303) 295-8228, jhusband@hollandhart.com
About the Authors
Mari Newman is a partner in the law firm of Killmer, Lane and Newman, LLP, where her practice emphasizes employment law and civil rights. She was instrumental in the passage of the 2007 amendments to the Colorado Anti-Discrimination Act and the 2001 and 2002 amendments to Denver's Anti-Discrimination Ordinance protecting gay, lesbian, bisexual, and transgender employees from discrimination. Rebecca T. Wallace is the staff attorney at the American Civil Liberties Union of Colorado, which works to protect, defend, and extend the civil liberties of all Coloradans. This is an updated version of Newman, "Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity," 35 The Colorado Lawyer 63 (April 2006).
This article provides guidance to lawyers seeking justice for their clients who are victims of workplace discrimination based on sexual orientation or gender identity, in the absence of effective federal and state laws expressly designed for this purpose.
Legal practitioners advocating on behalf of victims of discrimination or harassment on the basis of their status as gay, lesbian, bisexual, or transgender (GLBT) face an uphill battle. The U.S. Congress has not enacted a law that explicitly protects employees against workplace discrimination or harassment on the basis of sexual orientation or gender identity, and existing civil rights laws traditionally have been interpretedby the courts to exclude coverage for GLBT discrimination.(fn1) Although the Colorado Legislature has passed a law purporting to protect against such conduct, its remedies are so limited as to make the law a largely ineffective legal tool.(fn2) Given the lack of statutory protection for GLBT employees, attorneys have carved out creative and innovative legal theories to secure redress for their GLBT clients who have been subjected to discrimination or harassment. This article provides an overview of these theories.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (Title VII) does not explicitly protect against discrimination based on sexual orientation or gender identity.(fn3) The Tenth Circuit, for example, declined to allow application of Title VII to claims of sexual orientation discrimination when a heterosexual plaintiff claimed harassment at the hands of her lesbian supervisor.(fn4) Likewise, this Circuit's most recent declaration on a discrimination claim broughtby a transgender employee makes clear its view that Title VII currently does not recognize gender identity discrimination as sex-based.(fn5) Notwithstanding these significant legal hurdles, victims of discrimination based on their GLBT status recently have enjoyed increasing successby artfully pleading Title VII claims.
Gender Nonconformance
Perhaps the most successful of these claims are those pleaded pursuant to a theory of discrimination on the basis of gender nonconformance, as articulatedby the U.S. Supreme Court in Price Waterhouse v. Hopkins.(fn6) 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."(fn7) This "gender nonconformance" legal theory has been successfully forwarded on behalf of gay and lesbian plaintiffs whose gender presentation is not consistent with their biological sex.(fn8)
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,(fn9) which applied the Gender Motivated Violence Act(fn10) in the case of a prisoner who was sexually assaultedby a guard. The court in Schwenk rejected the argument that the plaintiff's transexuality was not an "element of gender," but rather a "psychiatric illness."(fn11)
The gender nonconformance theory has been successfully asserted on behalf of numerous transgender individuals in the employment context, as well.(fn12) In fact, in Etsitty, even as the Tenth Circuit refused to recognize transgender plaintiffs as part of a protected class, the court emphasized that its conclusion "should not be read to allow employers to deny transsexual employees legal protection other employees enjoy merelyby labeling them as transsexuals," and presumed that a transgender employee could state a claim for discrimination based on gender nonconformity under Price Waterhouse.(fn13) In addition to the prison and employment contexts, GLBT plaintiffs discriminated against for gender nonconforming behavior likewise have prevailed in cases of discrimination in public accommodations(fn14) and harassment in schools.(fn15)
This application of Price Waterhouse, however,does not provide a viable legal claim in cases where there is no evidence that the GLBT plaintiff was discriminated against specifically because of gender nonconforming behavior or appearance, as opposed to sexual orientation generally.(fn16) Courts have so held even when attorneys have specifically pleaded that discrimination on the basis of GLBT sexual practices is itself gender nonconformity discrimination.(fn17) Thus, this legal theory may not provide legal recourse for a "feminine" lesbian or a "masculine" gay man, and in any event must be very carefully pleaded in a manner that makes clear that the discrimination or harassment was based on gender nonconformance, not sexual orientation or gender identity. Additionally, courts have not recognized that an employer's termination of a transgender person who requires use of a restroom that conforms with her gender identity-but not with her anatomy-constitutes discrimination on the basis of gender nonconformity.(fn18)
Title VII Retaliation
Notwithstanding the various legal opinions holding that sexual orientation and gender identity classifications do not fall within the meaning of "sex" as definedby Title VII, there have been successful claims of retaliation under Title VII broughtby plaintiffs who opposed discrimination or harassment based on their sexual orientation and gender identity.(fn19) Notably, a plaintiff may maintain a cause of action for retaliation regardless of whether the treatment he or she suffered is adjudged in violation of Title VII.(fn20) However, because the complaining plaintiff must have a reasonable good-faith belief that the mistreatment violated Title VII,(fn21) some courts have concluded that a plaintiff's belief that Title VII prohibits the sexual orientation and/or gender identity discrimination to which he or she objected is never reasonable.(fn22)
The Tenth Circuit recently suggested as much in dicta (in a nonbinding, unpublished decision), when it noted the following:
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.(fn23)
Other courts have reached a contrary result, reasoning that the retaliation provision of Title VII protects an employee's opposition to practices that the employee reasonably believes are unlawful, not just to practices that actually are made unlawfulby Title VII:
[o]therwise, an employee might be deterred from reporting possible discrimination if she risked being discharged if the allegations-though entirely true and made in good faith-were later found insufficient to constitute a violation of the statute.(fn24)
Same-Sex Harassment
An established application of Title VII to harassment based on sexual orientation is derived from the U.S. Supreme Court's ruling in Oncale v. Sundowner Offshore Servs.(fn25) Onacle arose in the context of an offshore oil rig staffedby an all-male team of assertedly heterosexual employees who focused their sexually humiliating harassment on one male co-worker, whom they repeatedly threatened to rape. The Court concluded that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, and that, although the harassing conduct must be sexual in nature, it need not be motivatedby sexual desire to support an inference of discrimination on the basis of sex.
The Oncale Court articulated three available avenues of proof for a plaintiff asserting a same-sex harassment claim: (1) a showing that the harasser was motivatedby sexual desire; (2) evidence of harassment carried out in such sex-specific and derogatory terms that it is clear that the harasser is motivatedby general hostility toward the presence of that gender in the workplace; or (3) presentation of direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.(fn26) Although the plaintiff did not allege that he was homosexual or transgender, the Oncale decision often has been successfully applied in cases where the harassment apparently is...
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