by Teresa Shulda
The scope of sex discrimination under Title VII of the Civil Rights Act has come a long way from its roots in 1964 to the current battle over whether Title VII protects employees from discrimination based on sexual orientation and gender identity Recent decisions from federal appellate courts indicate that lesbian, gay bisexual, transgender, and queer ("LGBTQ") employees may see some light at the end of that tunnel, with the Second, Sixth, and Seventh Circuits holding that Title VII does protect gay and transgender workers. But Justice Kennedy's recent retirement has created uncertainty as to what the future holds for LGBTQ employees who bring sex discrimination cases based on their sexual orientation or gender identity1
II. The History of Title VII's Prohibition of Sex Discrimination
A. Legislative History and Early Cases
Congress passed Title VII of the Civil Rights Act in 1964,2 making it illegal for employers to discriminate against applicants and employees on the basis of certain protected categories. Title VII states:
It shall be an unlawful employment practice for an employer to: (1) fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.3
But the story of how "sex" ended up a protected category in this game-changing employment law is intriguing on its own.
Virginia Congressman Howard Smith proposed adding "sex" to the list of protected classifications only near the end of the legislative debate of the bill. And most commenters believe that Smith's motivation was to derail the bill's passage. Smith was an ardent and public opponent of civil rights legislation that benefited black citizens, leading many legal scholars to conclude that Smith thought adding "sex" to the bill would be unpopular enough with his mostly-male colleagues that the bill was sure to falter.4 In the end, the amendment to the bill adding "sex" as among the protected categories passed by a margin of 168-133.5
Because of this unique history, there is scant legislative history to help courts interpret "sex discrimination" in accordance with Congressional intent.6 As a result, early Title VII sex discrimination cases yielded decisions holding that pregnancy discrimination,7 "single women only" employment policies,8 policies that barred working mothers,9 and workplace sexual harassment10 were not prohibited by Title VII because the offensive conduct did not perfectly and clearly differentiate between all women and all men. Rather, the offensive conduct impacted only some women.11 But over the two decades following the passage of Title VII, Congress, the Equal Employment Opportunity Commission ("EEOC") (which administers Title VII), and the courts expanded Title VIPs coverage to prohibit these forms of sex discrimination.
B. Sexual Harassment as Sex-based Discrimination
By 1986, the Supreme Court recognized "hostile work environment" sex harassment.13 Meritor Savings Bank v. Vinson was the first case to go before the Supreme Court that posed the question of whether a work environment permeated by sexual harassment could be actionable under Title VII.14 Vinson sued her employer alleging that her male supervisor had subjected her to constant sexual harassment, including propositioning her for sex, sexual touching in the workplace in front of other employees, and even rape, among other conduct.15 It also came out during trial that Vinson entered a consensual sexual relationship with the supervisor, which she testified she acquiesced to because of her fear of losing her job.16 After the trial, the lower court ruled that Vinson had not been the victim of sexual harassment or sex discrimination, focusing on the admittedly consensual nature of her sexual relationship with the supervisor.17
The Supreme Court rejected the trial court's conclusions. The Supreme Court found that the lower court erred in determining that a "voluntary" sexual relationship cannot give rise to a Title VII violation; instead, the proper inquiry is whether the conduct from the alleged harasser was "unwelcome."18 In addition, the Court relied in part on the EEOC's 1980 guidance advocating the position that sexual harassment violates Title VII, even when there is no economic injury19 Ultimately, the Court adopted decisions by several federal appellate courts holding that sexual harassment that is sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment" violates Title VII.20
C. Early Sexual Orientation and Gender Identity Cases
Despite the expanding view of what constituted discrimination "because of sex," until recently, courts were unanimous in their view that sexual orientation and gender identity discrimination were not covered by Title VII. The early cases that considered the question relied on the scant legislative history to conclude that Congress could not have intended to include LGBTQ employees within the protections of the law.
For example, in Holloway v. Arthur Anderson & Co., a case decided by the Ninth Circuit in 1977, the plaintiff sued under Title VII alleging that her employer terminated her employment because she was transgender and preparing for sex reassignment surgery21 The plaintiff argued that the term "sex" in Title VII should encompass gender, which would then protect transgender employees. By contrast, the employer argued that "sex" should be given the "traditional definition based on anatomical characteristics."22 The court agreed with the employer, relying on the limited legislative history to conclude that "Congress has not shown any intent other than to restrict the term 'sex' to its traditional meaning," and the manifest purpose of the law was to ensure that men and women are treated equally The court thus declined to extend Title VII to transgender employees.24
Two years later, the Ninth Circuit followed the same reasoning regarding sexual orientation discrimination. In the consolidated cases of DeSantis v. P. Tel. & Tel. Co., four men and two women sued their respective employers under Title VII, alleging they were harassed and discriminated against due to their sexual orientation.25 The court followed the decision in Holloway and held that "Title VIPs prohibition of sex discrimination should not be judicially extended to include sexual preference such as homosexuality"26
The other federal appellate courts followed these early decisions, holding that Title VII does not protect LGBTQ employees from sexual orientation or transgender status discrimination.27 Like the Ninth Circuit, the courts routinely relied on the lack of legislative history to support their decisions that "sex discrimination" could only be interpreted to include "traditional concept [s] of sex."28
D. Sex Stereotyping and Opening the Door to LGBTQ Employees
While the interpretation of discrimination "based on sex" continued to evolve in the case law, protection for LGBTQ employees seemed to stall. But one landmark case decided 25 years after the enactment of Title VII had an enormous impact on which workers could seek protection from sex discrimination, and what conduct was prohibited under Title VII.
In 1989, the Supreme Court considered Price Waterhouse v. Hopkins. Ann Hopkins was a senior manager for the accounting giant Price Waterhouse. Though her performance in many regards appeared stellar, when it came time to vote for admittance to the partnership, the firm held her application for reconsideration until the following year. Hopkins sued for sex discrimination. The evidence revealed that her detractors described her as "macho," and one suggested that she "overcompensated for being a woman." She was advised to take a charm school course and told that to improve her chances for partnership she should "walk more femininely talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry"30
The Supreme Court agreed with the lower court's conclusion that sex stereotyping, which was evident by the partners'...