Sex Discrimination Is Not Just About Sex

My partner, Amy Epstein Gluck, a veteran employment lawyer in DC and Virginia, has delighted me by agreeing to author a series of guest posts.

This is the first in the series by Amy.

In the last eighteen months, the Equal Employment Opportunity Commission (EEOC) has maintained that sexual orientation and gender identity is included within Title VII of the Civil Rights Act of 1964, the seminal federal anti-discrimination law.

You’d think thatCouples, Pictogram, Gay, Hetero, Homothe EEOC’s (and President Obama’s) position would serve as a guide for federal courts analyzing employees’ discrimination claims in the private sector, but disparities in federal courts’ interpretations of Title VII’s protections abound.

Here’s why:

Employers and employees are unclear about whether Title VII prohibits discrimination based on LGBT status because the list of protected classes does not include sexual orientation or gender identity. But if an individual is being discriminated against based on sexual identity, gender identification, or sexual orientation, that’s discrimination based on sex, which is a Title VII protected class.

So shouldn’t this be a no-brainer?

Well, it’s not.  One federal judge in Illinois found that Title VII’s protections do not extend to cases of discrimination on the basis of sexual orientation. The judge’s reasoning lay in the fact that sexual orientation is not on the list of protected classes in Title VII. However, sex or gender stereotyping is protected by Title VII’s prohibition against sex discrimination.

If employers may not rely on sex-based considerations or account for gender when making employment decisions, and they cannot, then sexual orientation discrimination is a form of sex discrimination.  It is a “sex based consideration” and, as the EEOC determined in the 2015 case of Baldwin v. Foxx, an allegation of sex discrimination under Title VII.

Stating that sexual orientation is, essentially, “not on the list,” is not just short-sighted but it sets a dangerous precedent for private employers, who are not bound by Baldwin.  It is oxymoronic, indeed, for the law to allow a person to marry his or her same-sex partner on a Sunday and then be denied a promotion on a Monday because an employer is uncomfortable with that employee’s sexual orientation. Sexual orientation is inextricably connected to sex, and, therefore, discrimination on the basis of sexual orientation necessarily involves sex. See David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

Other federal courts have agreed:

  1. An Alabama court held that gender identity discrimination is prohibited by Title VII—Isaacs v. Felder Services, LLC found here. While gender identity is distinct and different from sexual orientation, both rely on an expansive interpretation of “sex” discrimination rather than on a textual interpretation of the language of the statute itself.
  2. In Haley Videckis, et al. v. Ryan Weisenberg,, found here, a federal judge in California recently ruled that discrimination on the basis of sexual orientation is covered by Titles VII and IX, not as a separate category of independent claims, but rather as part of gender stereotype discrimination and/or sex discrimination.
  3. In Lewis v. High Point Regional Health System, in 2015, a certified nursing assistant plaintiff alleged she was not hired for several positions because of her transgender status. Denying the employer’s motion to dismiss her Title VII sex discrimination claim, the federal court in North Carolina ruled that Title VII’s sex discrimination provision prohibits discrimination related to transgender status.
  4. In Finkle v. Howard Cnty., Md., in 2014, a Maryland judge denying the county’s motion to dismiss or for summary judgment on a Title VII claim brought by a volunteer auxiliary police officer, reasoning that:  “[I]t would seem that any discrimination against transsexuals (as transsexuals) – individuals who, by definition, do not conform to gender stereotypes – is proscribed by Title VII’s proscription of discrimination on the basis of sex. …”

I predict that courts, especially in the Fourth Circuit — where I practice, will continue to look to the EEOC’s guidance on this issue, and I think it’s only a matter of time before the U.S. Supreme Court rules definitively on this issue.

Amy Epstein Gluck

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]