LGBT Discrimination in the Workplace: What Will the Future Hold?

• Author: Pena, Kelly M.
• Position: Labor and Employment Law

In 2015, the U.S. Supreme Court's landmark decision in Obergfell v. Hodges, 135 S. Ct. 2584 (2015), focused the national conversation on the legal rights and protections of LGBT individuals when it held that states could no longer deny same-sex couples the right to marry under the same terms afforded to opposite-sex couples. The decision, which did not focus on employment law, was seen by some as an incredible victory for the LGBT community, while others felt strongly morally opposed to the concept of same-sex marriage. Apart from the broader social and moral discussions in the nation, regulators and the legal community began examining the decision's impact on other areas of law, to include employment law. Building on the new case, the Equal Employment Opportunity Commission (EEOC) issued a separate decision, taking the position that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. (1) Up to this point, the courts did not generally interpret Title VII's prohibition on sex discrimination to cover sexual orientation. After the EEOC's new interpretation, many predicted that the federal and state courts would begin following suit.

In spite of this prediction, post Obergfell courts and agency decisions on the question have been all over the map. Some have construed Title VII to cover sexual orientation discrimination, while others have taken the position that such conduct, no matter how wrong it might be from a policy perspective, is not presently covered under this law, and that any expansion of Title VII's scope could only be accomplished by Congress. Cases of gender identity discrimination, likewise, face an uncertain future. While the next few months will be telling, not only for federal cases, but also for cases filed under the Florida Civil Rights Act patterned after Title VII, this article attempts to review the history and likely direction the law will go in this important policy debate.

Background of Title VII and Sex Discrimination

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. (2) This law only applies to employers that have "[15] or more employees for each working day in each of [20] or more calendar weeks in the current or preceding calendar year." (3) Although seemingly uncomplicated, the very definition of the word "sex" has been heavily litigated since this statute's enactment.

Throughout the years, Congress has amended Title VII and expanded its scope. For example, in 1972, the prohibited conduct was extended to state and local government employers. (4) These legislative amendments were often the result of a push and pull between Congress and the courts. In 1976, the U.S. Supreme Court ruled that discrimination on the basis of pregnancy was not sex discrimination under Title VII. (5) Congress responded by enacting the Pregnancy Discrimination Act of 1978 two years later, effectively overturning this decision. (6)

Apart from the various congressional amendments, what qualifies as "sex discrimination" has also been expanded by the courts via statutory construction of the act. In 1986, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court held that sexual harassment is a form of prohibited sex discrimination under Title VII. Three years later, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that gender stereotyping qualifies as yet another form of sex discrimination prohibited by Title VII. The Court reasoned that sex discrimination under Title VII prohibits discriminatory conduct carried out because of sex, meaning the employer relied upon "sex-based considerations" when coming to its decision. (7)

In 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the U.S. Supreme Court held that sexual harassment between members of the same sex was also cognizable. The Court reasoned that sex discrimination under Title VII is not limited to conduct between members of the opposite sex." (8) Although "male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII ... statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils...." (9)

Despite what the voting members of Congress may have initially contemplated, Title VII's "sex discrimination" now encompasses a broader range of issues than the traditional tribulations experienced by women in a male-dominated workplace. As set forth in Price Waterhouse and Oncale, Title VII prohibits an employer from taking sex into account or relying upon "sex-based considerations" when making decisions that impact an employee or prospective employee. (10) Using this rationale, many have reasoned that it should also cover sexual orientation and gender identity.

In the last five years, the EEOC has been particularly vocal in its position that Title VII covers LGBT-related discrimination and that it will seek to enforce and apply the law accordingly. In 2012, the EEOC adopted a Strategic Enforcement Plan to include "coverage of lesbian, gay, bisexual, and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as a "top [c]ommission enforcement priority." (11) Since this time, the EEOC has filed numerous lawsuits and amicus curiae briefs addressing a variety of LGBT discrimination claims in numerous jurisdictions, including the 11th Circuit. (12)

But the EEOC was not the only agency to take such a strong position on this issue. In December 2014, former Attorney General Eric Holder issued guidance on behalf of the Department of Justice (DOJ) consistent with the EEOC; namely, that Title VII should be far more encompassing, taking into account other sex-based considerations. (13) Following suit, the Department of Labor released its final rule in 2014, barring federal contractors from discriminating on the basis of sexual orientation and gender identity, implementing an amendment to Executive Order 11, 246.

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