The Developing Law of LGBT Protections under Title VII

By: Darrell R. VanDeusen and Alexander P. Berg, Kollman & Saucier

The rights of lesbian, gay, bisexual, and transgender (LGBT) individuals remain a hot topic in the American workplace. Protection under federal anti-discrimination laws has proved elusive over the years. While terms like sex, gender, sexual orientation, and gender identity are routinely used, defining these terms and addressing the ramifications of those definitions has been challenging.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 PROHIBITS discrimination based on sex. Until about 10 years ago, it appeared to be settled law that sexual orientation and gender identity claims did not fall within the Act’s reach. A seismic shift in that view has occurred over the past decade, and in the past year in particular, with the Equal Employment Opportunity Commission (EEOC) filing its first private sector lawsuits alleging sexual orientation discrimination.

This article analyzes the developing law of protection for LGBT individuals at the federal level and provides some best practices with regard to LGBT issues in the workplace.

What Is Sexual Orientation?

“Sexual orientation as a concept cannot be defined or understood without reference to sex.”¹ “Sex refers to a person’s biological status and is typically categorized as male, female, or intersex. There are a number of indicators of biological sex, including sex chromosomes, gonads, internal reproductive organs, and external genitalia.”² The related concept of gender is used to “refer[] to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex. Behavior that is compatible with cultural expectations is referred to as gender-normative; behaviors that are viewed as incompatible with these expectations constitute gender non-conformity.”³ Gender, in other words, is a non-binary construct.⁴

Sexual orientation includes an individual’s attraction to others and may be conventionally classified as heterosexual, gay, lesbian, or bisexual. A man is referred to as gay if he is physically and/or emotionally attracted to other men.,⁵ A woman is referred to as lesbian if she is physically and/or emotionally attracted to other women.⁶ Someone is referred to as heterosexual or straight if he or she is physically and/ or emotionally attracted to someone of the opposite sex.⁷ An individual is referred to as bisexual if the individual is physically and/or emotionally attracted to both men and women.

What Is Gender Identity?

Gender identity is “the individual’s internal sense of being male or female.”⁸ The related concept of gender expression is “[t]he way an individual expresses his or her gender identity . . . and may or may not conform to social stereotypes associated with a particular gender.”⁹

A transgender¹⁰ individual is one whose “gender identity . . . is different from the sex assigned to them at birth.”¹¹ Thus, “[s]omeone who was assigned the male sex at birth but who identifies as female is a transgender woman. Likewise, a person assigned the female sex at birth but who identifies as male is a transgender man.”¹² In either case, it is preferable to use the gender pronouns (he and his, she and her) associated with the individual’s gender identity rather than the individual’s biological or anatomical sex.¹³

Transgender individuals may express their gender identity in any variety of ways. For example, they may: (1) tell their family, friends, and coworkers about their preferred identity; (2) refer to themselves using a different name and/or with different pronouns; (3) seek legal intervention by formally changing their name and/or sex; and/or (4) seek medical intervention by undergoing counseling, hormone therapy treatments, or gender reassignment surgery.¹⁴ There is no single marker or indicator of when a transition is “complete”; rather, it is preferable to take one’s cues from the preferences expressed by the individual.¹⁵

Sex Discrimination and Title VII

Title VII makes it illegal for employers 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.”¹⁶ The terms sexual orientation and gender identity are absent from the statute’s text.¹⁷

What is sex? Congress did not define the term.¹⁸ Indeed, the legislative history of Title VII reveals that sex discrimination was essentially an afterthought: “[s]ex as a basis of discrimination was added as a floor amendment one day before the House approved Title VII, without prior hearing or debate.”¹⁹

As a result, the scope of protection against sex discrimination has been subject to judicial and regulatory interpretation for over 50 years. The interpretive evolution of sex discrimination law has progressed from the so-called traditional view of sex as biological maleness or femaleness to broader protections against gender stereotypes about how men or women should act.

The Traditional View

In the late 1970s and early 1980s, “federal courts . . . initially adopted the approach that sex is distinct from gender. As a result, the federal court held that Title VII barred discrimination based on the former but not on the latter.”²⁰ That is, courts utilized the narrow “traditional definition [of ‘sex’] based on anatomical characteristics.”²¹ In other words, “the phrase in Title VII prohibiting discrimination based on ‘sex’ means that it is unlawful to discriminate against women because they are women and against men because they are men.”²²

These courts also highlighted that “[n]o mention is made of change of sex or of sexual preference” in the text of Title VII.²³ Furthermore, given the sparse legislative history concerning sex discrimination, courts at the time concluded that “[s]ituations involving transsexuals, homosexuals or bisexuals were simply not considered, and from this void [courts are] not permitted to fashion [their] own judicial interdictions.”²⁴ Thus, as the Seventh Circuit explained in Ulane v. Eastern Airlines, Inc., “if the term ‘sex’ as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.”²⁵

Price Waterhouse and Sex Stereotyping

In 1989, the Supreme Court announced the landmark decision of Price Waterhouse v. Hopkins,²⁶ a case that shifted the sex discrimination landscape. Ann Hopkins sued her employer after the firm’s partnership committee first tabled her candidacy for a year and then refused to propose her again.²⁷ A review of the written statements submitted by committee members of the partnership committee shed light on the firm’s mentality.

Rather than discussing her sales performance with clients, male committee members criticized Hopkins (the only woman out of 88 candidates considered for partnership that year) as “overly aggressive” and “macho.”²⁸ Hopkins was criticized for “using foul language” as a “lady,” and, though one member thought she “ha[d] matured from a tough talking somewhat masculine hard-nosed [manager] to an authoritative, formidable, but much more appealing lady [partner] candidate[,]” another suggested she take “a course at charm school.”²⁹ Seeking to help her chances at partnership, a committee member recommended that Hopkins “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”³⁰

The Supreme Court affirmed the lower courts’ opinions, with six Justices concluding that Hopkins’ “sex stereotyping” claim was covered under Title VII’s ban on sex discrimination.³¹ In reaching this decision, the Price Waterhouse Court drew on precedent recognizing that “employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females.”³²

The Court continued:

• [W]e are beyond the day when an employer [can] evaluate employees by assuming or insisting that they match[] the stereotypes associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.³³

Therefore, the Court said, “gender must be irrelevant to employment decisions.”³⁴ And “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or must not be, has acted on the basis of gender.”³⁵

The Oncale Decision

In the years since Price Waterhouse, two trends emerged. Some courts repeatedly rejected efforts to bootstrap sexual orientation or gender identity discrimination claims into Title VII when only sex discrimination is prohibited by the statute’s text. Other courts took a broader view toward analyzing claims involving LGBT individuals as sex stereotyping based on the failure to conform to societal gender norms. In those cases, sex stereotyping, same-sex harassment, and discrimination based on the failure to conform to an employer’s gender expectations are reasonably comparable to the obvious prohibitions against discrimination by one sex against the other sex.

This view, interestingly, came from the pen of the late Justice Scalia, who noted, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”³⁶ In Oncale v. Sundowner Offshores Services, ³⁷ a male employee working on an oil platform in the Gulf of Mexico claimed that he was subject to sex harassment by several male coworkers.³⁸ Oncale claimed he was called sexually derogatory slurs, subjected against his will to “sex-related, humiliating actions,” and graphically threatened with rape.³⁹

In a unanimous opinion, the Court held that “sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.”⁴⁰ As the Court explained, “Title VII’s prohibition of discrimination ‘because of . . . sex’ protects men as well as women,”⁴¹ regardless of the motivation of the harasser.⁴² Thus, “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”⁴³

Case Law Following Price Waterhouse and Oncale

It was on the shoulders of Price Waterhouse and Oncale that the Ninth Circuit permitted a pre-operative transgender woman to bring suit under the Violence Against Women Act (VAWA) in Schwenk v. Hartford.⁴⁴ The court stated:

• In Price Waterhouse . . . , the Supreme Court held that Title VII barred not just discrimination based on the fact that Hopkins was a woman, but also discrimination based on the fact that she failed “to act like a woman”—that is, to conform to socially-constructed gender expectations. . . . Thus, under Price Waterhouse, “sex” under Title VII encompasses both sex—that is, the biological differences between men and women—and gender. Discrimination because one fails to act in the way expected of a man or women is forbidden under Title VII . . . . Indeed, for purposes of [Title VII], the terms “sex” and “gender” have become interchangeable.⁴⁵

Less than four months after Schwenk, the First Circuit decided Rosa v. Park West Bank & Trust Co.,⁴⁶ a case that, like the similarly named civil rights pioneer of the 1950s, broke barriers to discrimination. Lucas Rosa, a biological male crossdresser, applied for, and was denied, a bank loan while clothed in “traditionally feminine attire.”⁴⁷

In deciding the claim brought under the Equal Credit Opportunity Act, the court looked to Title VII case law and concluded that, under the reasoning of Price Waterhouse, Rosa could bring a claim based on a gender stereotyping theory, that is, that “the Bank [treats], for credit purposes, a woman who dresses like a man differently than a man who dresses like a woman.”⁴⁸

In Bibby v. Coca Cola Bottling Company, the Third Circuit recognized that same-sex harassment may constitute sex discrimination but concluded that the employee at issue did not meet his burden of proof.⁴⁹ John Bibby filed a sex discrimination lawsuit after he was allegedly physically assaulted by a coworker and was told that “everybody knows” Bibby was “gay as a three dollar bill,” a “fa__ot,” and a person who “take[s] it up the a__.”⁵⁰

The court rejected his appeal because Bibby only showed that he was discriminated against because of his sexual orientation—conduct that, though reprehensible, was not protected by Title VII.⁵¹ However, the court paved the way for similar future lawsuits, noting:

• [T]here are at least three ways by which a plaintiff alleging same-sex sexual harassment might demonstrate that the harassment amounted to discrimination because of sex— the harasser was motivated by sexual desire, the harasser was expressing a general hostility to the presence of one sex in the workplace, or the harasser was acting to punish the victim’s non-compliance with gender stereotypes. Based on the facts of a particular case and the creativity of the parties, other ways in which to prove that harassment occurred because of sex may be available.⁵²

Two employees bringing lawsuits after Bibby were able to proceed on their sex discrimination claims in the Sixth Circuit. In Smith v. City of Salem,⁵³ the court permitted a sex discrimination claim brought by a transgender woman firefighter. After working for the fire department for seven years without issue, Jimmie Smith told his supervisor he was transitioning from male to female after being diagnosed with Gender Identity Disorder.⁵⁴ Shortly thereafter, Smith’s coworkers commented that Smith’s appearance and mannerisms were “not masculine enough,” and Smith was suspended and then terminated.⁵⁵

The court noted that the traditional interpretation of sex discrimination “has been eviscerated by Price Waterhouse” in that “the Supreme Court established that Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”⁵⁶ Just as Ann Hopkins was discriminated against as a woman because she did not wear dresses or makeup, the court concluded, “[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”⁵⁷

Approximately nine months later, in Barnes v. City of Cincinnati,⁵⁸ the Sixth Circuit reinforced the impact of Smith in a case involving a transgender woman police sergeant. The court explained that Philecia (born Phillip) Barnes, as a pre-operative transgender woman, was a member of a protected class as an individual who “fail[ed] to conform to sex stereotypes concerning how a man should look and behave.”⁵⁹ The court also noted that it was not necessary to identify “an exact correlation with the employee receiving more favorable treatment” when claiming that similarly situated individuals were treated differently, but only that the plaintiff and comparator must be “similar in ‘all of the relevant aspects’” regarding job responsibilities.⁶⁰

In Etsitty v. Utah Transit Authority,⁶¹ the Tenth Circuit illustrated the distinctions between transgender discrimination claims, on one hand, and sex stereotyping discrimination claims against a transgender individual, on the other hand. Krystal Etsitty, a pre-operative transgender woman, was fired from her bus driver position after the transit authority became concerned about which public restroom Etsitty would use.⁶²

The court first concluded that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.”⁶³ Even though it concluded that transgender women were not a protected class, the court assumed, without deciding, that Etsitty could bring a claim under the Price Waterhouse sex stereotyping theory as an individual who “act[ed] and appear[ed] as a member of the opposite sex.”⁶⁴ The court then dubiously credited the transit authority’s concern that Etsitty would use a women’s public restroom while still possessing male genitalia as a nondiscriminatory reason, concluding that “[u]se of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.”⁶⁵

The Eleventh Circuit extended broad protections to transgender individuals in its 2011 decision in Glenn v. Brumby.⁶⁶ Vandiver Elizabeth Glenn, born a biological male named Glenn Morrison, began to take steps in 2005 to transition from male to female with assistance from her health care providers, including living as a woman outside of the workplace, before being hired by the Georgia General Assembly’s Office of Legislative Counsel (OLC).⁶⁷ The following year, she informed her supervisor that she was transgender and was in the process of becoming a woman.⁶⁸ When Glenn showed up at the office dressed and made up as a woman on Halloween 2006 (a day when employees were permitted to come to work wearing costumes), Sewell Brumby, the head of the OLC, objected to Glenn’s attire and stated that it was “unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing” because, to Brumby, a male in women’s clothing was “unnatural.”⁶⁹

By the fall of 2007, Glenn informed her supervisor that she would begin coming to work as a woman and was going to change her legal name. After Brumby learned of the development, he terminated Glenn, explaining that “Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s co-workers uncomfortable.”⁷⁰

Glenn contended that Brumby violated the Equal Protection Clause when he “discriminat[ed] against her because of her sex, including her female gender identity and her failure to conform to the sex stereotypes associated with the sex Defendant[] perceived her to be.”⁷¹

Affirming summary judgment in Glenn’s favor,⁷² the Eleventh Circuit began by noting that the transgender label is necessarily based on “the perception that his or her behavior transgresses gender stereotypes.”⁷³ Relying on Price Waterhouse and its descendants, the court concluded that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination.”⁷⁴ The court rejected Brumby’s claim that he terminated Glenn out of concern for litigation by other women who were uncomfortable with Glenn using the same restroom as unsupported by the record.⁷⁵

Other federal courts have likewise adopted this broader view of sex. The U.S. District Court for the District of Columbia offered a particularly poignant analogy illustrating these principles in Schroer v. Billington.⁷⁶ In Schroer, the court compared sex discrimination against transgender individuals to religious discrimination against those who convert between faiths:

• Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.⁷⁷

Ultimately, the court explained, it did not “matter[] for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”⁷⁸

Applying this logic to transgender employees, it would be irrational to conclude that Title VII’s prohibition against discrimination on the basis of sex does not encompass discrimination because of a change of sex. Stated another way, transgender individuals “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.”⁷⁹

Though the Supreme Court has never held that discrimination against an LGBT individual can be actionable sex discrimination, Price Waterhouse, Oncale, and their progeny are fairly read to encompass such claims under the sex stereotyping umbrella.

And then there was the Court’s 2013 decision in United States v. Windsor⁸⁰ invalidating the Defense of Marriage Act, which defined marriage exclusively as a heterosexual union, followed by its decision recognizing a fundamental right to same-sex marriage in Obergefell v. Hodges.⁸¹ These cases are consistent with the emerging federal protection of LGBT rights.

Legislative Efforts at LGBT Protection

Congressional efforts to explicitly forbid discrimination on the basis of sexual orientation or gender identity have uniformly failed.⁸² In recent years, the Employment Non-Discrimination Act (ENDA)⁸³ and Equality Act⁸⁴ have been unsuccessfully introduced. There is little in the present political climate to suggest imminent action on any bill along these lines.⁸⁵

On the other hand, it remains established law that “transsexualism” and “gender identity disorders not resulting from physical impairments” are not considered “disabilities” under the Americans with Disabilities Act (ADA).⁸⁶ Gender dysphoria (formerly referred to as gender identity disorder) is, however, a psychological condition recognized in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) that refers to an individual having a marked difference between his or her gender at birth and the one he or she presently identifies with.⁸⁷

As of April 2016, 22 states and the District of Columbia have enacted their own laws prohibiting sexual orientation discrimination.⁸⁸ With the exceptions of New Hampshire, New York, and Wisconsin, employees are also protected against gender identity discrimination in these jurisdictions.⁸⁹

By contrast, laws that permit business owners to discriminate against the LGBT community were recently enacted in North Carolina⁹⁰ and Mississippi.⁹¹ Similar bills were passed by legislatures in Arizona,⁹² Georgia,⁹³ and South Dakota⁹⁴ before being vetoed.⁹⁵ Litigation challenging the North Carolina law has already been filed.

The Executive Branch Approach: The EEOC Makes LGBT Issues a Priority

Recent executive enforcement efforts to curb sexual orientation and gender identity discrimination are prominent. A 1998 Executive Order signed by President Bill Clinton made it illegal to discriminate against federal public sector employees based on sexual orientation.⁹⁶ On July 21, 2014, President Obama expanded this protection to prohibit discrimination based on gender identity and to prohibit sexual orientation or gender identity discrimination by federal contractors.⁹⁷

There are growing numbers of administrative complaints involving LGBT issues. According to the U.S. Equal Employment Opportunity Commission (EEOC), there were a total of 1,412 charges alleging sex discrimination based on an employee’s sexual orientation and/or gender identity/transgender status during the 2015 fiscal year.⁹⁸ Roughly 20% of these charges involved sex discrimination based on gender identity or transgender status, with the remainder involving sexual orientation discrimination.⁹⁹

In its 2013-16 Strategic Enforcement Plan, the EEOC announced that one of its national priorities was addressing issues of “coverage of [LGBT] individuals under Title VII’s sex discrimination provisions.”¹⁰⁰ Consistent with this Plan, the agency has taken steps to advance LGBT issues over the past few years.

In 2012, the agency concluded in Macy v. Holder that a transgender woman, whose job offer was revoked after informing her employer of her transition from male to female, could bring a cognizable Title VII claim based on “gender identity, change of sex, and/or transgender status.”¹⁰¹ Analyzing the complaint under the Price Waterhouse framework, the agency observed that “[w]hat matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”¹⁰²

The agency then provided an extremely broad interpretation of Title VII’s sex discrimination prohibition: “Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”103 Therefore, the agency concluded, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.”¹⁰⁴

In 2015, the EEOC confirmed that discrimination based on sexual orientation, like the discrimination based on transgender status in Macy, is sex discrimination.¹⁰⁵ The agency reasoned that “allegations on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex” because

• it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.¹⁰⁶

The agency has since sought to advance the reasoning behind its administrative rulings in the judicial forum, recently filing lawsuits in EEOC v. Scott Medical Health Center, P.C.¹⁰⁷ and EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc.¹⁰⁸

In the first of these lawsuits, the agency sued on behalf of Dale Baxley, a married gay man who claims his supervisor berated him as a ““f__king fa__ot” and “***” three to four times a week, and also asked Baxley in relation to his sex life, “Who’s the butch and who is the ***?”¹⁰⁹ In IFCO Systems, the EEOC has sued on behalf of Yolanda Boone, a lesbian forklift operator whose supervisor, among other things, asked “Are you a girl or a man?” and told her she “would look good in a dress.”¹¹⁰ In each case, the agency seeks to break the implicit barrier between sex discrimination and sexual orientation discrimination.¹¹¹

Practical Pointers

As both employer and employees look at the landscape today, here are some best practices with regard to LGBT issues in the workplace.

• Focus on employees’ abilities to perform the job. Regardless of the extent to which there is actual protection afforded by law, remember that the concept behind anti-discrimination principles is that the focus in the workplace should be on individuals’ abilities to perform the job for which they are employed. Characteristics irrelevant to job performance really have no bearing on workplace interaction. This is typically easier for some employers when addressing sexual orientation in the workplace as opposed to gender identity. Guidance regarding gender identity issues at work is readily available.
• Ask transgender employees which pronoun to use. Where possible, ask transgender employees which pronoun they prefer be used.¹¹² If such a conversation is not possible, use the pronoun consistent with the way the person presents outwardly.¹¹³
• Exhibit sensitivity to transgender individuals who are transitioning. Be sensitive to transgender individuals who are transitioning. Do not revoke a job offer based on disclosures made by the individual, as the argument that an applicant misrepresented him or herself is likely unpersuasive.¹¹⁴ If a background check reveals different pronouns, ask the applicant respectfully whether he or she was previously known by a different name.¹¹⁵
• Update personnel records. When an employee transitions during his or her employment, be sure to update your personnel records accordingly.¹¹⁶ When an employee undergoes sex reassignment surgery, be sure to maintain corresponding medical records separately from the employee’s personnel file in a manner that ensures confidentiality and privacy.
• Make certain that bathrooms are available to all employees. Make bathrooms available to all employees regardless of their gender identity. The Occupational Safety & Health Administration (OSHA) recommends that, where feasible, employers should offer single-occupancy, unisex bathrooms (i.e., facilities that any one individual may use at a time) and/or multiple-occupancy, gender-neutral facilities with lockable stalls for each occupant.¹¹⁷
• Update EEO policies to include sexual orientation and gender identity if covered by state or local law. Ensure that your EEO policies are current by listing sexual orientation and gender identity as protected traits, if covered by the laws of your state or locality, or by inserting language that you do not discriminate “based on race, color, sex, religion, national origin, or any other status protected under federal, state, or local law.”
• Develop training programs. Train employees. Sometimes the most difficult interactions are not with supervisors or managers but with coworkers. Help employees understand that the protections afforded based on sexual orientation and gender identity are just as powerful as those afforded based on race, national origin, or other protected classifications. The best course of action is to treat employees fairly and equally, without regard to their sexual orientation or gender identity.

The best course of action is to treat employees fairly and equally, without regard to their sexual orientation or gender identity.

Darrell VanDeusen is the President of Kollman & Saucier, a metropolitan Baltimore firm representing management in all areas of labor & employment law. Alex Berg is an associate with the firm.

RESEARCH PATH: Labor & Employment > EEO Counseling > Statutes, Theories, and Defenses > Articles > Title VII

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1. Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (EEOC May 21, 2013), at 6 (quoting American Psychological Ass’n, Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation (Feb. 2011), http://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf  [hereinafter APA Glossary]). 2. APA Glossary, supra note 1. 3. Id. 4. American Psychological Ass’n, Guidelines for Psychological Practice with Transgender and Gender Nonconforming People, 70 Am. Psychologist 832 (Dec. 2015), http://www.apa.org/practice/guidelines/transgender.pdf. 5. Baldwin, supra note 1, at 6 (quoting APA Glossary). 6. Id. 7. Id. 8. See U.S. Office of Personnel Management (OPM), Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/ [hereinafter OPM Gender Identity Guidance]. 9. Id. 10. According to GLAAD, it is preferable to use the term transgender in lieu of the antiquated “transgendered.” See GLAAD Media Reference Guide—Transgender Issues, http://www.glaad.org/reference/transgender (last visited Apr. 8, 2016). Conversely, individuals who identify with their birth gender may be referred to as cisgender. Id. 11. OPM Gender Identity Guidance, supra note 8. 12. Id. 13. GLAAD Media Reference Guide, supra note 10. 14. Id. 15. Three illustrative examples of transgender individuals in the media are found in the television shows Orange is the New Black (Laverne Cox) and Transparent (Jeffrey Tambor) and in the 2015 film The Danish Girl (Eddie Redmayne). 16. 42 U.S.C. § 2000e-2(a)(1). 17. See, e.g., Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination because of sexual orientation”) (collecting cases). 18. In General Electric Company v. Gilbert, 429 U.S. 125 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination. In response to Gilbert, Congress passed the Pregnancy Discrimination Act of 1978 (PDA), which states that discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions” is sex discrimination. 42 U.S.C. § 2000e(k). 19. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977). “Ironically,” as the Fifth Circuit noted, “the amendment was introduced by Representative Howard Smith of Virginia,” who “was accused . . . of wishing to sabotage [the law’s] passage.” See Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1090 (5th Cir. 1975). 20. Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (collecting cases). 21. Holloway, 566 F.2d at 662. 22. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984); see also Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749–50 (8th Cir. 1982); Holloway, 566 F.2d at 662–63; Smith v. Liberty Mutual Ins. Co., 569 F.2d 325, 326–27 (5th Cir. 1978); Grossman v. Bernards Tp. Bd. of Educ., 1975 U.S. Dist. LEXIS 16261 (D.N.J. Sept. 10, 1975), aff’d, 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S. 897 (1976). 23. Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456, 457 (N.D. Cal. 1975), aff’d, 570 F.2d 354 (9th Cir. 1978). 24. Id. 25. Ulane, 742 F.2d at 1086. See also DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329 (9th Cir. 1979). 26. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 27. Id. at 231-32 28. Id. at 234-35 29. Id. at 235 30. Id. 31. See id. at 250 (plurality opinion); id. at 260 (White, J., concurring); id. at 272 (O’Connor, J., concurring) 32. See City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 (1978) 33. Price Waterhouse, 490 U.S. at 251 (quoting Manhart, 435 U.S. at 707 n.13 (citing Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971))) (emphasis added). 34. Id. at 239. There is a very limited exception, however, whereby employers may consider gender if “gender is a ‘bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of th[e] particular business or enterprise.’” Id. at 242 (quoting 42 U.S.C. § 2000e-2(e)). 35. Id. 36. Oncale v. Sundowner Offshore Servs.,Inc., 523 U.S. 75, 79 (1998) (emphasis added). 37. Id. 38. Id. at 77. 39. Id. 40. Id. at 82. 41. Id. at 78 (citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983)). 42. See Oncale,523 U.S. at 79. 43. Id. 44. 204 F.3d 1187 (9th Cir. 2000). 45. Id. at 1201–02 (internal citations and footnotes omitted) 46. 214 F.3d 213 (1st Cir. 2000) 47. Id. at 214. 48. Id. at 215–16. Confusingly, the court also stated in dicta that Rosa would not be able to bring a claim if the bank regarded him as gay. See id. at 216. 49. 260 F.3d 257 (3d Cir. 2001). 50. Id. at 259–60. 51. Id. at 264–65. 52. Id. at 264. 53. 378 F.3d 566 (6th Cir. 2004). 54. Id. at 568. 55. Id. at 568–69. 56. Id. at 573 (emphasis added). 57. Id. at 574. 58. 401 F.3d 729 (6th Cir. 2005). 59. Id. at 737. 60. Id. (citation omitted). 61. 502 F.3d 1215 (10th Cir. 2007). 62. See Id. at 1219–20. 63. Id. at 1222 (emphasis added). 64. Id. at 1224. 65. Id. 66. 663 F.3d 1312 (11th Cir. 2011). 67. Id. at 1313–14. 68. Id. 69. Id. 70. Id. 71. Id.72. Id. at 1316. 73. Id. 74. Id. at 1317. 75. Id. at 1321. 76. 577 F. Supp. 2d 293 (D.D.C. 2008). 77. Id. at 306 (emphasis in original). 78. Id. at 305. 79. Tronetti v. TLC Healthnet Lakeshore Hosp., 2003 U.S. Dist. LEXIS 23757, at *15 (W.D.N.Y. Sept. 26, 2003) (citing Oncale, 523 U.S. at 80). 80. 133 S. Ct. 2675 (2013). In a related case decided the same day, the Court rejected a challenge by supporters of California’s Proposition 8, thereby permitting same-sex marriages to go forward in the state. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). 81. 135 S. Ct. 2584 (2015). 82. See, e.g., Holloway, 566 F.2d at 662 n.6 (citing failed legislation introduced during 94th and 95th Congresses); Ulane, 742 F.2d at 1085–86 (citing extensive legislative history of 96th and 97th Congresses). 83. See, e.g., H.R. 1755, 113th Cong. (2013); H.R. 3017, 111th Cong. (2009); H.R. 2015, 110th Cong. (2007); H.R. 3685, 110th Cong. (2007); H.R. 3686, 110th Cong. (2007). 84. See Equality Act of 2015, H.R. 3185, 114th Cong. (2015). 85. The failure to pass such legislation does not decide the issue, however: “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990). 86. 42 U.S.C. § 12211(b)(1). The ADA also excludes “transvestism, . . . pedophilia, exhibitionism, voyeurism, [and] other sexual behavior disorders” from coverage. Id. 87. Interestingly, Utah’s definition of gender identity directly tracks the meaning of the term in the DSM-5. See Utah Code § 34A-5-102(1)(o). 88. These states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. See Cal. Gov’t Code § 12940; Colo. Rev. Stat. § 24-34-402; Conn. Gen. Stat. §§ 46a-60, 46a-81c; Del. Code tit. 19, § 711; Haw. Rev. Stat. § 378-2; 775 Ill. Comp. Stat. §§ 5/1-103, 5/2-102; Iowa Code § 216.6; Me. Rev. Stat. tit. 5, § 4572; Md. Code, State Gov’t § 20-606; Mass. Gen. Laws ch. 151B, § 4; Minn. Stat. § 363A.08; Nev. Rev. Stat. § 613.330; N.H. Rev. Stat. Ann. § 354-A:7; N.J. Stat. Ann. § 10:5-12; N.M. Stat. § 28-1-7; N.Y. Exec. Law § 296; Or. Rev. Stat. § 659A.030; R.I. Gen. Laws § 28-5-7; Utah Code § 34A-5-106; Vt. Stat. tit. 21, § 495; Wash. Rev. Code § 49.60.180; Wis. Stat. §§ 111.32-111.322; D.C. Code § 2-1402.11. 89. See Cal. Gov’t Code § 12940; Colo. Rev. Stat. § 24-34-402; Conn. Gen. Stat. §§ 46a-60, 46a-81c; Del. Code tit. 19, § 711; Haw. Rev. Stat. § 378-2; 775 Ill. Comp. Stat. §§ 5/1-103, 5/2-102; Iowa Code § 216.6; Me. Rev. Stat. tit. 5, § 4572; Md. Code, State Gov’t § 20-606; Mass. Gen. Laws ch. 151B, § 4; Minn. Stat. § 363A.08; Nev. Rev. Stat. § 613.330; N.J. Stat. Ann. § 10:5-12; N.M. Stat. § 28-1-7; Or. Rev. Stat. § 659A.030; R.I. Gen. Laws § 28-5-7; Utah Code § 34A-5-106; Vt. Stat. tit. 21, § 495; Wash. Rev. Code § 49.60.180; D.C. Code § 2-1402.11. 90. See N.C. House Bill 2, http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf (enacted by special legislative session Mar. 23, 2016). 91. See Miss. House Bill 1523, http://billstatus.ls.state.ms.us/documents/2016/pdf/HB/1500-1599/HB1523SG.pdf. 92. See Ariz. Senate Bill 1062 (2014), https://legiscan.com/AZ/text/SB1062/id/912244. 93. Georgia House Bill 757 cleared both chambers of the state legislature on March 16, 2016. Governor Deal announced his veto decision on March 28. See https://gov.georgia.gov/press-releases/2016-03-28/ transcript-deal-hb-757-remarks-0. 94. See S.D. House Bill 1008, http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?Bill=1008&Session=2016. 95. Lawmakers in six states have also introduced bathroom restriction laws this session. For a list of all pending state legislation affecting transgender individuals, see The National Center for Transgender Equality’s “Action Center” page at http://www.transequality. org/action-center (last visited Apr. 7, 2016). 96. Exec. Order No. 13087, 63 Fed. Reg. 30097 (May 28, 1998), http://www.eeoc.gov/laws/executiveorders/13087.cfm. 97. See Exec. Order No. 13672, 79 Fed. Reg. 42971 (July 21, 2014), https://www.gpo.gov/fdsys/pkg/FR-2014-07-23/pdf/2014-17522.pdf. 98. U.S. Equal Employment Opportunity Commission, What You Should Know about EEOC and the Enforcement Protections for LGBT Workers: Charge Data, http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. 99. Id. 100. U.S. Equal Employment Opportunity Commission, Strategic Enforcement Plan: FY 2013- 2016, http://www.eeoc.gov/eeoc/plan/sep.cfm. 101. Appeal No. 0120120821 (EEOC Apr. 20, 2012).