TITLE VII: THE “AMBIGUOUSLY GAY” STATUTE

by Vijay Mani
October 3rd, 2014

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On October 1, 2014 the Fairness for All Marylanders Act (“FAMA”) went into effect.  FAMA, which was originally discussed in the JGL Law Blog post (Will Prince George’s County residents face less fairness if The Fairness for All Marylanders Act of 2014 (SB 212) becomes law? Possibly.) prohibits discrimination of Maryland employees on the basis of gender identity or transgender status. In passing FAMA, Maryland joined sixteen other states as the only states to cover sexual orientation and gender identity in employment anti-discrimination laws. While many state and local laws expressly protect lesbian, gay, bisexual and transgender (“LGBT”) individuals from workplace harassment and discrimination, the majority of states do not, leaving many of those employees who wish to pursue claims of sexual orientation or gender identity discrimination to rely on Title VII of the Civil Rights Act of 1964 (“Title VII”). 

Title VII prohibits discrimination in the workplace based on race, color, religion, sex and national origin; it does not explicitly protect against discrimination on the basis of sexual orientation. See 42 U.S.C.S. § 2000e et seq. That said, many courts have found that LGBT individuals may bring a viable discrimination claim under Title VII on the basis of sex, using a sex stereotyping theory, which can be distinguished from sexual orientation.

Sex stereotyping, using a gender discrimination angle, under Title VII was best explained in the landmark Supreme Court case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which involved an employer denying a female accountant partnership opportunities because she did not conform to typical gender roles. Specifically, the female employee’s supervisors stated that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse, 490 U.S. at 235.  The Court found that the employment decision was based on the employee’s sex because sex stereotyping[1] partly motivated that decision. See id. at 250.    

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII, has used the sex stereotyping theory to include gender identity, under the purview of Title VII. See Macy v. Department of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012). In Macy, the EEOC recognized that gender identity was protected under Title VII because it involved “gender stereotyping –failing to act and appear according to expectations defined by gender.” EEOC Appeal No. 0120120821 at *6 (quoting Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011)).      

Similarly, the Fifth Circuit, in E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444 (5th Cir. 2013), found that a male employee, who had been subjected to homophobic slurs and salacious conduct, “could rely on gender-stereotyping evidence to show that same-sex discrimination occurred ‘because of sex’ in accordance with Title VII.” Id. at 468. The Sixth Circuit, however, held differently on the sex stereotyping theory as a means to use Title VII with regard to sexual orientation.  In fact, the Sixth Circuit noted that if the sex stereotyping theory were used in that manner, “any discrimination based on sexual orientation would be actionable under a sex stereotyping theory” because “all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.”  Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006).

The Sixth Circuit underscores the reality that even under the sex stereotyping theory, certain LGBT individuals who work in states that do not expressly protect them from workplace discrimination on the basis of sexual orientation are not able to pursue a claim.  Although some members of Congress have repeatedly introduced the Employment Non-Discrimination Act (“ENDA”) in order to more broadly prohibit employment discrimination on the basis of sexual orientation, to date, no federal statute expressly provides protection.  As such, the ambiguity with respect to sexual orientation under Title VII persists.           

For more information on employment discrimination, contact one of JGL’s discrimination lawyers.

          

 

[1] See this posting on how sex stereotyping might be negatively affecting your personal relationships.

 

Vijay Mani is an associate in the firm’s Qui Tam litigation and Labor/Employment Law practice groups.  He is highly active in the firm’s False Claims Act practice, advocating on behalf of whistleblowers throughout the country in claims against government contractors that have committed fraud. He is passionate about helping whistleblower clients who have gone out on a limb to uncover massive fraud schemes perpetrated by their employers that would likely remain hidden forever if left unexposed.

Contact Vijay Mani

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