Does Title VII cover sexual orientation?
Title VII of the Civil Rights Act of 1964 (which applies employers with 15 or more employees) prohibits discrimination on the basis of an employee’s sex. The law doesn’t mention sexual orientation as among the protected categories and many courts, including the 10th Circuit Court of Appeals (which covers Kansas employers), have concluded that Title VII does not in fact protect employees from discrimination on the basis of their sexual orientation. That said, courts have concluded discrimination “based on sex” includes harassment and adverse actions based on sex-stereotyping. In other words, discrimination against a woman because she does not conform to feminine or female-specific norms or stereotypes; or against a man because he does not conform to masculine or male-specific norms or stereotypes.
This interpretation of Title VII has yielded legal success for some transgender employees. For example, in Smith v. City of Salem, the plaintiff, a transgender firefighter, alleged that a disciplinary suspension was discrimination “based on sex” after coworkers made comments that Smith’s appearance and mannerisms weren’t masculine enough. The City of Salem tried to get the lawsuit thrown out under the argument that Title VII doesn’t cover discrimination based on an employee’s transgender status. The lower court agreed with the employer. But the 6th Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio and Tennessee) reversed, holding that Title VII applied if Smith was discriminated against based on gender non-conforming conduct.
Transgender employees have seen similar outcomes in lawsuits brought in many states. The key to getting the case to a jury was the employees’ argument that they were discriminated against because they failed to conform to gender stereotypes; not necessarily because of their transgender status. However, employees who have brought legal claims based solely on their status as a gay or lesbian employee (rather than on issues surrounding sex-stereotyping) have not been as successful.
The same can be said of efforts to pass a federal law that would explicitly prohibit discrimination on the basis of sexual orientation (and gender identity). Starting in 1994, there have been annual efforts to pass such a law. Initially, the Employment Non-Discrimination Act (“ENDA”) was proposed to Congress. That bill would have prohibited employment discrimination based on an individual’s actual or perceived sexual orientation. Each year since, a version of the bill has been proposed, with gender identity added as a protected category in 2007. But none of these bills has been able to garner enough votes to pass through the House and Senate to the President.
In 2015, ENDA was replaced with The Equality Act, a more comprehensive bill than ENDA. The Equality Act would amend The Civil Rights Act of 1964 to prohibit discrimination on the basis of sexual orientation and gender identity not only in the employment context, but also in housing, public accommodations, education, credit, jury service, and federally funded programs. The bill was introduced to the House and Senate in July 2015, and was then referred to committees.
Next time I’ll discuss the EEOC’s position generally.