LGBT, the EEOC, and the meaning of "sex".

• Author: Munoz, Shane T.
• Position: Labor and Employment Law

For half a century, Title VII's prohibition on sex discrimination has been applied almost exclusively to disparities between women and men. A new decision by the Equal Employment Opportunity Commission (EEOC), Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015), (1) extends Title VII's protections to cover sexual orientation for federal sector employees and may lead the way for courts to recognize similar protections in the private sector. The EEOC also now maintains that gender identity is protected by Title VII, (2) and some courts have agreed.

This article first examines the history and background of LGBT and sexual orientation discrimination in the workplace, including recent arguments, decisions, and proposed legislation regarding this issue, as well as a brief summary of current state and local protections. Second, this article delves into the reasoning and analysis behind Foxx and the EEOC's current interpretation of Title VII. Lastly, this article discusses the possible impact of Foxx and whether federal courts will follow the EEOC's interpretation of Title VII and apply it to the private sector.

History of Employment Discrimination against LGBT Individuals

There has been a long history of discrimination against members of the LGBT community in various facets of life. The most publicized and arguably the most important recent issue has been the federal ban on gay marriage, which deprived many LGBT persons of what the U.S. Supreme Court has now recognized as their fundamental constitutional right to marriage. (3) Workplace discrimination has been cited as another major obstacle for members of the LGBT community. There may be 7 million private sector LGBT employees, 1 million state and local LGBT employees, and 200,000 LGBT employees of the federal government. (4) Studies have concluded that "[e]mployment discrimination against gay, lesbian, and bisexual persons has a long history of acceptance," (5) and there are high levels of discrimination against LGBT persons at their places of employment. (6)

The Williams Institute (7) conducted a comprehensive study on employment discrimination against LGBT individuals, in which they aggregated data collected from many surveys. Some specific findings include:

* In 2008, 37.7 percent of LGB respondents stated that they were subjected to some form of discrimination in the workplace. (8)

* In 2011, 78 percent of respondents to the largest survey of transgender people reported experiencing some form of harassment or mistreatment at work because of their gender identity. (9)

* In 2011,20 percent reported having lost a job, 39 percent reported that they were not hired for positions they had applied for, and 17 percent of respondents reported being denied a promotion because of their LGBT status. (10)

* In a study conducted from 2005 to 2010, 10 percent to 28 percent of respondents reported that they received negative or unsatisfactory performance evaluations because of their LGBT status. (11)

While one might question the accuracy of this data and the magnitude of LGBT discrimination, it seems clear that discrimination has existed and continues to exist.

Historically, however, it has been less clear whether existing laws protected LGBT individuals from employment discrimination. In the past, even the EEOC took the position that gender identity and sexual orientation were not protected classes under Title VII. (12) The Americans with Disabilities Act (ADA) expressly excludes "homosexuality," "bisexuality," "transvestism," "transsexualism," and "gender identity disorders not resulting from physical impairments" from its definition of "disability," and hence excludes persons with those traits from its protections. (13)

State and Local Protections

Until recently, state and local laws prohibiting employment discrimination generally mirrored federal laws in terms of the classes they protected. Thus, while sex discrimination was universally prohibited, statutes and ordinances did not expressly prohibit discrimination based on sexual orientation or gender identity. This is changing. There is a growing trend at the state and local levels to protect LGBT workers from employment discrimination. Twenty-two states and the District of Columbia have some sort of protection against discrimination in employment based on sexual orientation. (14) The majority of these statewide employment nondiscrimination laws also cover gender identity. (15) In addition, many local governments provide their own protections against employment discrimination on the basis of sexual orientation, gender identity, or both. (16) At least 200 cities and counties have enacted legislation that prohibits both public and private employers from discriminating on the basis of sexual orientation. (17) However, a majority of states and municipalities do not have these protections, leaving their citizens to rely on federal law for protection from LGBT discrimination in the workplace.

LGBT Discrimination in Federal Courts

Title VII of the Civil Rights Act of 1964 established that "it shall be an unlawful employment practice for an employer to 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." (18) For a quarter of a century after Title VII was enacted, there seemed to be little thought that the prohibition on sex discrimination might extend to sexual orientation discrimination or gender identity discrimination; as mentioned above, even the EEOC rejected the proposition. Even today, the U.S. Supreme Court has never directly ruled on whether sexual orientation is protected under Title VII. Many federal courts have rejected employment discrimination claims based on sexual orientation and gender identity because those are not explicitly listed as protected classes under Title VII. (19) As a result, an individual who claimed discrimination because of sexual orientation or LGBT status often had no recourse under federal law. However, two U.S. Supreme Court cases laid the foundation for at least some extension of Title VII's protections to LGBT individuals.

* Price Waterhouse v. Hopkins--In 1989, the Supreme Court held that gender stereotyping is actionable as sex discrimination under Title VII. (20) In Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), the plaintiff was denied a promotion because her employer felt she needed to be more feminine. She was advised that she could improve her chances for promotion if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." (21) A plurality agreed that Title VII prohibits "not just discrimination because of biological sex, but also gender stereotyping --failing to act and appear according to expectations defined by gender." (22) By including gender stereotypes under "sex" in Title VII, this decision was a deviation from the traditional view on this issue and expanded Title VII's protections.

Price Waterhouse arguably opened the door for claims that discrimination based on sexual orientation constituted prohibited "sex" discrimination under Title VII. Gender stereotyping refers to the "societal norms" associated with one's gender, e.g. (some would say), men should be masculine; women should shave their legs; men should not walk in a certain way; and members of one sex should be romantically attracted only to members of the other sex. Many scholars and LGBT rights activists have argued that the notion of discriminating against a man or woman for being sexually and emotionally attracted to the same sex is exactly the same as the gender stereotyping that Price Waterhouse held is "sex" discrimination under Title VII. Accordingly, LGBT plaintiffs throughout the country have used Price Waterhouse to argue that discrimination on the basis of their sexual orientation is discrimination based on gender stereotypes and norms, and, thus, violates Title VII. (23) Historically, those arguments have had little success in courts.

* Oncale v. Sundowner Offshore Services--In 1998, the Supreme Court unanimously ruled that same-sex sexual harassment may be actionable under Title VII. (24) In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the plaintiff worked as part of an eightman crew on an offshore oil platform in the Gulf of Mexico. On several occasions, the other male crew members subjected him to humiliating sex-related actions, physical assault, and...