Last July, the Equal Employment Opportunity Commission (EEOC) issued a federal sector decision, determining that discrimination based on sexual orientation is, by its very nature, discrimination because of sex under Title VII, the federal law protecting employees from employment discrimination. That case, Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015), was the first of its kind to do so, and demonstrates the continuing commitment of the EEOC to protecting LGBT employees, a commitment first established in 2012, when the EEOC released a similar federal sector decision, Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012), which found that discrimination based on gender identity was sex discrimination. However, since EEOC decisions are not binding on federal courts, it has been uncertain when or if courts would agree with the EEOC’s new interpretations.
Title VII protects employees from discrimination “because ofâ€¦ sex. “For many years, courts assumed, without much thought, that this meant that women were protected from discrimination against women, and that men were protected from discrimination against men, but that there was no protection for the LGBT community.
In 2004 and 2005, the Sixth Circuit took the first step to protecting the rights of LGBT employees from discrimination in employment, when it decided Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). Both cases were brought by transgender employees and the court said that while discrimination based on gender identity was not sex discrimination, the fact that an employee is transgender does not negate the protection that all employees have from being discriminated against because their employer perceives them as violating gender stereotypes. This means that LGBT employees have protection from employment discrimination, but only where they can point to evidence that it is about “stereotyping, “rather than sexual orientation or gender identity. But the Sixth Circuit has not taken the next step, to say that discrimination based on gender identity or based on sexual orientation is sex discrimination, regardless of the employee’s ability to tie it to evidence of gender stereotyping.
This is exactly what the EEOC did when it decided Baldwin; “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. “The EEOC makes three arguments in favor of this interpretation. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, if an employer were to discipline a lesbian employee after seeing a photo of her wife in her office, but not a man with a photo of his wife, they are very literally treating that employee differently based on their sex. Second, sexual orientation discrimination is sex discrimination because it is associational discrimination based on sex. Courts have consistently found that discrimination based on one’s being in an interracial relationship is discrimination because of race. Likewise, discrimination based on being in a same-sex relationship is discrimination because of sex. Third, sexual orientation discrimination is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including beliefs about the person to whom the employee “should “be attracted (and who they shouldn’t).
Following this decision, the EEOC filed two lawsuits this spring on behalf of a gay man and a lesbian woman who were subjected to hostile work environments because of sex. See EEOC Files First Suits Challenging Sexual Orientation Discrimination as Sex Discrimination, March 1, 2016, https://www.eeoc.gov/eeoc/newsroom/release/3-1-16.cfm. Neither of these cases are in the Sixth Circuit, but it seems like only a matter of time before the court gets an opportunity to decide whether or not to agree with the EEOC, that discrimination based on sexual orientation is sex discrimination under Title VII. With no federal legislation explicitly providing for the protection of LGBT employees on the horizon, how courts decide these cases will be incredibly important to determining the scope of protection for employees based on sexual orientation and gender identity.
Authored by Caroline Hyatt, Gerhardstein & Branch Law Graduate