malefemaleID-100100959Part I: Sex Stereotyping and Sexual-Orientation Discrimination Claims

Pick up any current newspaper and you’ll likely see a story about sexual-orientation and gender-identity issues (if you can find a current newspaper to pick up). It’s ubiquitous in the national political and religious discussion. Just about everyone has an opinion, and, at times, those opinions spill over into the workplace.

With that in mind, following is a brief discussion of federal law as it relates to sex stereotyping and sexual-orientation discrimination claims in the workplace.[1] Stay tuned for Part II in this series, which will discuss transgender bathrooms in the workplace, and Part III, which will offer practical advice for employers in avoiding sexual-orientation and gender-identity related claims.

1.  Title VII As Applied to Sexual-Orientation

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Based on this language, most courts that have addressed the issue – including the Sixth Circuit Court of Appeals, which includes Tennessee, Kentucky, Ohio, and Michigan – have held that “[s]exual orientation is not a protected class under Title VII.” E.g., Reed v. S. Bend Nights, Inc., 128 F. Supp. 3d 996, 999 (E.D. Mich. 2015) (citing Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006)).

Nevertheless, the Supreme Court has held that “sex stereotyping” may constitute actionable discrimination under Title VII. In the seminal case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” The result is what courts have referred to as a “curious distinction” between claims of sex-stereotyping discrimination and sexual-orientation discrimination. E.g., Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1066 (7th Cir. 2003) (Posner, J., concurring); Reed, 128 F. Supp. 3d at 1000. That is, while most courts do not recognize sexual-orientation discrimination per se, they do recognize discrimination based on gender non-conforming behavior “observed at work or affecting…job performance,” such as one’s “appearance or mannerisms on the job.” Vickers, 453 F.3d at 763; see also Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005).

2.  The EEOC’s Position

Lest we become bogged down in the sex-stereotyping/sexual-orientation discrimination distinction – an area of the law that noted Judge Richard Posner stated in Hamm “has gone off the tracks” – the EEOC has weighed in. Unlike Judge Posner, however, the EEOC “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.” And the Commission’s recent decisions involving federal employment confirm its position. For example, in Macy v. Dep’t of Justice, the EEOC held that intentional discrimination against a transgender individual because of that person’s gender identity constitutes discrimination on the basis of sex, thereby violating Title VII. Likewise, in Baldwin v. Dep’t of Transportation, the EEOC held that intentional discrimination on the basis of someone’s sexual orientation constitutes discrimination on the basis of sex under Title VII.

Moreover, in its current Strategic Enforcement Plan, the Commission identifies “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a “top enforcement priority.”  To that end, the EEOC recently filed a pair of lawsuits seeking to establish that Title VII extends to sexual-orientation discrimination. In EEOC v. Scott Medical Health Center, P.C., filed in the U.S. District Court for the Western District of Pennsylvania (Case No. 2:16-cv-00225), the Commission claims that Scott Medical harassed and discriminated against former employee, Dale Baxley, because of his sexual orientation and failed to take action to stop the harassment, resulting in Baxley’s constructive discharge. Similarly, in EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc., filed in the U.S. District Court for the District of Maryland (Case No. 1:16-cv-00595), the Commission claims that IFCO harassed and discriminated against former employee, Yolanda Boone, on the basis of her sexual orientation and retaliated against her for complaining about harassment.

3.  The Takeaway

We can expect courts to grapple with the sex stereotyping/sexual-orientation distinction for years to come. In the meantime, two things are certain: (1) The EEOC has staked out its position, and (2) administrative charges asserting these types of claims are on the rise. In 2015 alone, the EEOC received 1,181 charges asserting sex stereotyping or sexual-orientation discrimination, recovering $3,000,000 for claimants. As a result, whatever your personal leanings, sex stereotyping and sexual-orientation discrimination in the workplace are legitimate risk-management issues.

Part II in this series will discuss transgender bathrooms in the workplace. Part III will offer employers practical advice in avoiding sexual-orientation and gender-identity related claims.

[1] Numerous states and municipalities have enacted legislation prohibiting discrimination on the basis of sexual orientation or sexual identity. Moreover, in the public sector, sex stereotyping and sexual-orientation discrimination claims may also implicate the Equal Protection Clause, the Due Process Clause, and the First Amendment. Finally, federal contractors are barred from discriminating on the basis of sexual orientation and gender identity under amendments to Executive Order 11246 and DOL regulations. This post, however, is limited to an analysis of Title VII of the Civil Rights Act of 1964, as amended.

*Photo Credit: David Castillo at

The information contained on this blog is not legal advice, nor does this blog create an attorney-client relationship. Klein Bussell attorneys do not blog about pending matters handled on behalf of our clients and will never disclose client confidences.

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