Happy and Gay: Can Employment Discrimination Based on Sex Also Include Discrimination Based on Sexual Orientation?

By Ilona Demenina Anderson

The answer to this question is: Maybe…

The Georgia Regional Hospital did not pay a female security officer equally as her male counterparts. Her supervisor harassed and discriminated against her not only because of her sex, but she was targeted for failing to carry herself in a feminine manner. The female security officer wore a male uniform and she sported a male haircut. She identified with the male gender and she was homosexual. The hospital administration appointed a person who was less qualified than her as her direct supervisor. Her equipment was tampered with and her shifts were so scheduled to make for conflicts. Finding her employment conditions unbearable, she filed a complaint with the Human Resources Department. The scrutiny and harassment intensified until she resigned.

She then filed a complaint for discrimination because of her sexual orientation and gender non-conformity, and for retaliation. The magistrate judge recommended the dismissal of her complaint, reasoning that Title VII did not cover discrimination against homosexuals. Since the female security guard’s claim for discrimination was based on gender non-conformity, the magistrate reasoned that this was just another way to claim discrimination based on sexual orientation. Title VII protected people from employment discrimination based on their race, color, sex, religion, or national origin. The magistrate further pointed out that all courts have held that Title VII did not protect sexual orientation.

The district judge adopted the report and recommendation of the magistrate judge. The court dismissed, with prejudice, the female security guard’s action. The U.S. Eleventh Circuit Court of Appeal held that discrimination based on gender non-conformity is actionable but that the female security guard did not provide enough facts to suggest that her presentation in the masculine manner led to the alleged adverse employment actions.

The appellate court held that employment discrimination based on failure to conform to a gender stereotype is sex-based discrimination. It is a separate and distinct avenue for relief under Title VII. However, the leading and prior precedent holds that Title VII does not prohibit any discharge or termination for homosexuality. Thus, the appellate court denied the appeal.

Evans took her appeal to the U.S. Supreme Court, which is currently consitering taking up this very important issue.

The questions that this case, Evans v. Georgia Regional Hospital, presents to us are: Is discrimination based on sexual orientation prohibited under Title VII? Can a homosexual employee who has been discriminated against sue for damages under Title VII?

Prior to the enactment of Title VII of the Civil Rights Act of 1964, society required a woman to “wear dresses, be subservient to men and be sexually attracted only to men” – wrote Judge Robin Rosenbaum of the U.S. Eleventh Circuit Court of Appeals in her disssenting opinion in the Evans case. Judge Rosenbaum firther said that, if a woman did not conform to this view of what a woman should be, then an employer had every right to fire her. The enactment of the Civil Rights Act of 1964 precluded all discrimination based on every stereotype of what a woman should be.

This was the doctrine in Price Waterhouse v. Hopkins, 490 U.S 228 (1989). Prior to the decision in Price Waterhouse, the Supreme Court recognized only one kind of discrimination. Discrimination was limited to acts of employers that stem from a belief that merely by possessing the protected characteristics  (race, color, religion, sex and national origin), the dismissed or discriminated employee will act against the employer’s desires because the employee will act in conformity with a supposed stereotypical characteristic that the protected class possesses. This is ascriptive stereotyping.

Thus, in one case, the court found the employer to have discriminated against hiring females with young children because the employer believed a stereotype: that males with young children are better able to balance their family obligations with work obligations than females with young children. The employer here believed certain things to be true about women (that they were incapable of balancing work with family obligations). He did not bother to consider whether the individual female applicant for the job was truly incapable of balancing family and work obligations. He assumed that all female applicants with young children would conform to an undesirable characteristic.

The Price Waterhouse decision changed this definition. Sex discrimination was also found when employers acted adversely against employees who failed to conform to the employer’s stereotypical beliefs about how women should act. This is prescriptive stereotyping. There is discrimination when the employer has a prescribed belief of what women should be and how they should act and then fires or discriminates against female employees who do not act in conformity with the prescribed characteristics.

Price Waterhouse denied one female accountant a promotion to partner of the accounting firm because her superiors perceived her to be abrasive, brusque, “macho.” They criticized her because she did not walk or talk in a feminine way, did not wear make-up or jewelry, and did not sport a feminine hairstyle. In denying her partnership, the employer was acting based on the belief that a woman cannot or should not be aggressive.

The U.S. Supreme Court ruled that the employer discriminated against the female accountant for being what a woman must not be and the Court held that Price Waterhouse’s conduct fell within the acts prohibited under Title VII. According to the Supreme Court, Title VII intended to strike at the entire spectrum of all disparate treatment of men and women resulting from sex stereotypes.

The Eleventh Circuit Court applied the doctrine of the Price Waterhouse case in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). An employer fired a male employee because the employer learned that he intended to proceed with gender transition. The employer terminated the employee on the sole basis of the intended transition. The Eleventh Circuit Court held that firing the transgender employee was discrimination that violated Title VII. The employer fired the transgender employee because he failed to conform to the employer’s view that a man should remain with the sex he was assigned at birth.

Applying the rulings in these cases to the case of the female security guard, it seems obvious: the hospital discriminated against the female security guard because she failed to conform to how a woman should dress, how a woman should act, and to whom a woman should be attracted. All these are prescriptive stereotypes. A gay employee is attracted to members of his or her own sex. When an employer discriminates against a lesbian employee, the employer is acting against the employee precisely because she is sexually attracted to women instead of being attracted only to men.  This is a prescriptive stereotype: the employer believes that women should only be attracted to men.

However, it clearly is not that obvious, because the circuits are currently split on this issue, as are government agencies. The U.S. Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII to prohibit sexual orientation discrimination in employment. However, the U.S. Justice Department asserted its interpretation of Title VII, arguing that it does not protect sexual orientation. The U.S. Supreme Court has an opportunity to put this dispute to rest, and create uniform federal protections for LGBT employees. In fact, earlier this month, seventy six businesses, incuding American Airlines, Starbucks, Deutsche Bank, Estée Lauder, the Miami Heat, Tampa Bay Rays, Google, Apple, Uber, Facebook and Airbnb filed an amicus brief with the U.S. Supreme Court, urging the Court to take up the case and create uniform protections against sexual orientation discrimination. The world will have to await the conclusion in this case.

If you are experiencing discrination at work, Saenz & Anderson attrneys are vailable for a consultation regarding your rights and options.

References:

Evans v. Georgia Regional Hospital

Price Waterhouse v. Hopkins

Glenn v. Brumby

EEOC: What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

CNN: DOJ files amicus brief that says Title VII does not protect sexual orientation

Law.com: 76 Companies Urge Supreme Court to Support LGBT Workplace Protections

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