Discrimination

Sexual Orientation and Transgender Discrimination

Title VII of the Civil Rights Act of 1964 is the primary federal source of anti-discrimination protection for employees. Unfortunately, courts have held that Title VII does not prohibit employment discrimination or harassment on the basis of sexual orientation. However, if you are a lesbian, gay, bisexual, or transgender (LGBT) employee, you do have some limited protection under federal law and, depending on the state that you live in, may have broad protections under the laws of your state, county, or city.

I. Protections Provided by Title VII

A. What Types of Discrimination Affecting LGBT Employees are Prohibited under Title VII?

Same-Sex Harassment

While harassment or discrimination based on an employee’s sexual orientation is not protected, the Supreme Court has held that Title VII can prohibit workplace harassment by someone of the same-sex if it constitutes discrimination “because of sex.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).

The Oncale Court expressly held “that nothing in Title VII necessary bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Id. at 79. Therefore, Title VII, and state anti-discrimination statutes modeled after Title VII, reach same-sex harassment, regardless of whether the harassment arose from “proposals of sexual activity” or from “general hostility to the presence of women in the workplace.” Id. at 80. Thus, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”

Following the Oncale decision, the Third Circuit set forth three alternative theories by which same-sex sexual harassment can be proven under Title VII:

The first is where there is evidence that the harasser sexually desires the victim. . . . [The second is where] the harassment was caused by a general hostility to the presence of one sex in the workplace or in a particular work function. . . . [The third] by presenting evidence that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.

Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir. 2001) (emphasis added).

Gender Stereotyping

Title VII also prohibits employers from making employment decisions based on gender stereotypes, which has provided some protection to LGBT employees. An employer may not discriminate or harass an employee because she does not conform to the employer’s stereotype of the person’s respective gender. This protection means that employers cannot discriminate against or harass an employee who they find to be too effeminate or masculine.

In the 1989 landmark decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). the United States Supreme Court held that the accounting firm had violated Title VII when it denied Ann Hopkins a partnership because she was not feminine enough. The Firm had told Hopkins that she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Ann Hopkins alleged that she was denied a partnership position because the accounting firm had given credence and effect to stereotyped images of women. Hopkins had been called, among other things, “macho,” “masculine,” was told that she needed to take “a course at charm school.”

Six members of the Court agreed that such comments bespoke gender discrimination and declared:

“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . An employer who objects to the aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job it they do not. Title VII lifts women out of this bind.”

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.”

Same-sex sexual harassment is common in gender stereotyping cases, and the Supreme Court has recognized that while sexual orientation is not a protected category, such harassment claims may be brought under Title VII. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).

In Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864 (9th Cir. 2001), the Ninth Circuit Court of Appeals applied the Price Waterhouse analysis in holding that Title VII is violated where a male employee is discriminated against for not conforming to stereotypes of how men should behave. Id. at 874-75. Antonio Sanchez, one of the three plaintiffs, alleged that he was repeatedly taunted by his male co-workers and a supervisor because, in essence, he did not act like a man. Specifically, his co-workers and a supervisor (1) “repeatedly referred to Sanchez in Spanish and English as ‘she’ and ‘her;’” (2) “mocked Sanchez for walking and carrying his serving tray ‘like a woman;’” (3) “taunted him in Spanish and English, as, among other things, a ‘faggot’;’” and (4) “derided [him] for not having sexual intercourse with a waitress who was his friend.” Id. at 870, 874. The Ninth Circuit agreed that Mr. Sanchez was discriminated against on the basis of his sex, because he failed to conform to a male stereotype.

Similarly, in Singleton v. United States Gypsum Company, 140 Cal.App.4th 1547 (2006), a California Court of Appeal found same sex harassment constituted unlawful discrimination on the basis of sex, in violation of California’s Fair Employment Practices Act, which, although it also protects against sexual orientation discrimination, is interpreted consistent with Title VII. In Singleton, plaintiff alleged he was subjected to persistent verbal harassment and taunts by male co-workers who referred to him as “sing-a-ling” (a reference to a gay movie character), assertions that he was having oral sex with his supervisor, and threats of violent sexual attack. When Mr. Singleton complained, his supervisors told him “just tell him f— you and keep working,” and instructed him to “just ignore” the harassment and “do your job.” The Court of Appeal found that the harassment the plaintiff was subjected to constituted unlawful harassment “because of sex”. Relying on Oncale, the court noted that gender-based harassment need not be motivated by sexual desire to be actionable, “Sexual harassment occurs as in this case when sex is used as a weapon to create a hostile workplace.” Id. at 1564. These cases show that harassment that, at first glance, appears to be based on sexual orientation, can be actionable under Title VII where it is grounded in sexual stereotypes.

A district court in New York recently held that a gay employee (Sabo) who was repeatedly taunted and harassed by his co-workers who did not believe or know that he was gay could, in fact, state a Title VII sexually hostile work environment claim where the discrimination was based on gender stereotypes. EEOC v. Grief Bros. Corp., No. 02-CV-468S, 2004 WL 2202641 (W.D.N.Y. Sept.30, 2004). Critical to the resolution of the Title VII harassment claim was the deposition testimony of the harassing co-workers, who testified that they “did not know that he was a homosexual, nor did they believe that he was.” Id. at *10. As a result, the court denied the defendant’s motion for summary judgment, because “there is sufficient evidence in the record from which a jury could find that Sabo was not harassed because he is a homosexual, but rather, was harassed because he is a male.” Id. at *11. The court held that under Price Waterhouse and Oncale, Sabo’s “nonconformance with gender stereotypes” meant that the resulting harassment of him was actionable under Title VII. Id. at *12-*13. In most cases, the evidence must clearly show that the plaintiff was discriminated against based on sex, and not merely sexual orientation.

Recently, a Court of Appeals acknowledged that a claim for gender stereotyping was a colorable Title VII claim, but that the plaintiff failed to meet her burden of proof, in Kiley v. American Soc. for Prevention of Cruelty to Animals, 296 Fed. Appx. 107 (2d Cir. 2008). In Kiley, a gay woman was terminated allegedly because she failed to conform to the gender stereotypes of womanhood. To support her claim, she cited comments by her coworkers that she should “watch out” and that her transfer was because her employer thought it would be less awkward for everyone because she was gay. She also stated that she had filed a complaint for sex discrimination and noted on her complaint that she believed it was because she was gay. While acknowledging that gender stereotyping may be ground for a Title VII claim, the Kiley court found that none of the behavior linked directly to gender discrimination and that she failed to show that any invalid assumptions by her supervisor about appropriate behavior for a woman led to an adverse employment action.

Transgender or Gender Identity

Until recently, federal courts had uniformly held that Title VII did not protect transgendered people from discrimination. Recently, however, several courts have held that Title VII protects transgender people from discrimination and harassment based on their nonconformity to gender stereotypes. This protection means that employers cannot discriminate against or harass an employee because he or she assumes an appearance that is stereotypically associated with the opposite gender.

The Sixth Circuit recently held that an employee who alleged that discrimination occurred because the employee was undergoing treatment for “gender identity disorder” which resulted in the employee’s appearance becoming more feminine, could state a Title VII claim for gender discrimination. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). Here, the co-workers “began questioning him about his appearance and commenting that his appearance and mannerisms were not ‘masculine enough,’” and a supervisor met with the city’s attorney “with the intention of using Smith’s transexualism and its manifestations as a basis for terminating his employment” through requiring the plaintiff “to undergo three separate psychological evaluations,” which they hoped would lead to his resignation or refusal to comply, the latter of which would be grounds for terminating his employment for insubordination. Id. at 568, 569. The Sixth Circuit agreed that, under Price Waterhouse, Azteca Restaurant, and similar gender stereotyping cases, Mr. Smith had stated a case for sex stereotyping and gender discrimination based on “his failure to conform to sex stereotypes concerning how a man should look and behave.” Id. at 572. The defendants’ petition for rehearing en banc was denied on October 18, 2004.

In another case, Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), the Sixth Circuit drew upon Smith v. Salem and held that a pre-operative male to female transsexual who failed the probationary period required to become a police sergeant was a member of a protected class when he alleged discrimination on the basis of a failure to conform to gender stereotypes. The court stated, “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination irrespective of the cause of that behavior; a label, such as “transsexual” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his gender non-conformity.”Id. at 737. Although Smith and Barnes did not involve harassment claims, the conduct may have been sufficient to bring such claims based on the co-workers’ verbal and physical conduct.

Retaliation

Title VII also protects employees who have opposed discrimination or participated in Title VII processes. Participation or opposition is not protected, however, unless it concerns discrimination that is unlawful under Title VII.

This restriction means, for example, that an employee is not protected under Title VII if she complains to her employer about a supervisor’s discriminatory action against a coworker who is lesbian because discrimination based on sexual orientation is not unlawful under Title VII. However, if that same employee were to oppose her employer’s discrimination against a coworker whose demeanor the employer found too effeminate, the employee would be engaging in protected activity and Title VII would protect the employee from retaliation by the employer for her protected activity.

Likewise, if an employee has filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) because her employer has discriminated against her because she does not conform to feminine gender stereotypes, the employer would be violating Title VII if it retaliated against her. But if she has filed an EEOC charge alleging that her employer discriminated against her because she is bisexual, she is not protected from any retaliation by the employer.

B.Who Is Covered By Title VII?

Title VII does not regulate all employers, nor does it protect all employees. For an employee to have a claim for discrimination for either same-sex harassment or gender stereotyping, the employee must work for a covered employer, as well as be a covered employee.

Title VII regulates private employers, state and local government employers, labor organizations, employment agencies, and the federal government (although there are different procedures to pursue a discrimination claim for federal employees). For an employer to be covered by Title VII, however, it must have 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year. Even if an employer employs fewer than 15 employees, it may still be considered a covered employer under Title VII if it has acted jointly with a parent or subsidiary corporation, and together their employees number more than 15. Courts focus on factors such as the degree of interrelatedness, degree of common ownership, control, and management, and degree of centralization of personnel functions to determine whether the companies have acted jointly.

Title VII protects only employees of covered employers and some categories of workers, including the following, have particular rules governing who is protected:

Independent Contractors: Many courts have held that Title VII does not apply to discrimination involving an independent contractor relationship. Most courts use a common law agency test to determine whether a worker is an “employee” or an “independent contractor” for the purposes of Title VII.
Partners and Other Owners: Depending on the facts of a case, partners, shareholders, and directors of a business may be considered employees under Title VII. The court will consider the facts relating to the worker’s actual role within the company on a case-by-case basis.
Undocumented Aliens: The EEOC will not, on its own initiative, inquire into a worker’s immigration status. However, all administrative remedies may not be available to undocumented workers.

C. What are the Procedures and Remedies for Title VII Claim?

Procedure for Non-Federal Employees

You must file a charge with the EEOC in order to seek a legal remedy for discrimination or retaliation that violated Title VII. You must file your charge within 180 days from the date of the alleged violation in order to protect your ability to vindicate your rights under Title VII. If you live in a state that has a state law prohibiting sex discrimination, however, this 180-day filing deadline is extended to 300 days or 30 days after you have received notice of termination of state proceedings if that date is earlier, because you are required to file a charge with the appropriate agency in your state.

The EEOC or your state agency will investigate your charge of discrimination, and if it determines your charge has merit, it will attempt to foster conciliation between you and the employer. However, most EEOC field offices do not have the capacity to act on most complaints in a timely manner. Regardless of the EEOC’s determination, you may bring a civil action in court after 90 days have passed since you filed your charge.

Procedure for Federal Employees

You must first initiate a complaint by contacting your employing agency’s EEO counselor within 45 days of the alleged violation. If the complaint the complaint cannot be resolved informally, you must file a formal written complaint with the agency that discriminated against you within 15 days of the notice of the EEO counselor’s failure to resolve the matter. The agency investigation must be completed within 180 days of the date the complaint or its last amendment was filed, or within 360 days of the date the original complaint was filed, whichever is earlier. A court action must be filed within 90 days of receipt of notice of final action on the formal written complaint.

Remedies Available Under Title VII

If a court finds you have been discriminated or retaliated against in violation of Title VII, you may be entitled to remedies including:

Reinstatement, compelled hiring, or compelled promotion
Back pay
Front pay
Retroactive seniority and benefits
Compensatory and punitive damages (punitive damages not available against government employers)
Attorneys’ fees and costs

II. Additional Protection for Federal Employees

Federal law prohibits many federal agencies from discriminating based on any factor that is not job-related including sexual orientation. Protected employees include those federal employees who are covered by the protections of the Civil Service Reform Act of 1978. Certain federal employees, such as those who work for the General Accounting Office and intelligence-gathering agencies, such as the FBI and CIA, are not protected. Covered employees may pursue their claim through the U.S. Office of Special Counsel, the Merit Systems Protection Board, and under applicable collective bargaining grievance procedures.

III. State and Local Laws

As of 2009, seventeen states and the District of Columbia have laws that prohibit employers from discriminating against or harassing employees based on their sexual orientation: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, and Wisconsin. An additional six states have laws prohibiting sexual orientation discrimination in public workplaces: Colorado, Delaware, Indiana, Michigan, Montana, and Pennsylvania.

Six states and the District of Columbia also have laws that provide protection to transgender employees who work for both public and private employers: California, Illinois, Maine, Minnesota, New Mexico, and Rhode Island. Pennsylvania and Kentucky prohibit discrimination against a transgendered employee by a public employer, such as a state agency.

District of Columbia

The DC Human Rights Act prohibits any employer (except the federal government) from discriminating on the basis of sexual orientation or personal appearance (including transgendered people). Thus, unlike federal law, if an employer discriminates against an applicant or an employee because of his or her sexual orientation, the employee has legal protections. The DC Human Rights Act also protects employees who oppose discrimination or participate in the legal process to vindicate their or other employee’s rights.

If you work for a private employer and your employer has discriminated against you because of your sexual orientation or because you are transgendered, you have one year to file a charge of discrimination with either the D.C. Office of Human Rights or in D.C. Superior Court. If you work for the D.C. government, you must file your complaint within 180 days of the discrimination. You can file either an administrative complaint or file a complaint in D.C. Superior Court. If you chose to file administratively, you first file your complaint with your agency’s EEO officer. Your complaint will be investigated and a report will be issued within 21 days. You have 15 days to appeal the report to the D.C. Office of Human Rights if you disagree with its findings.

If a court finds you have been discriminated or retaliated against in violation of the DC Human Rights Act, you may be entitled to remedies including:

Reinstatement, compelled hiring, or compelled promotion
Back pay
Front pay
Compensatory and punitive damages (punitive damages not available against government employers)
Attorneys’ fees and costs

Maryland State Law

Maryland law also prohibits certain employers from discriminating on the basis of sexual orientation. If an employer has 15 or more employees working each day for 20 or more calendar weeks in the current or preceding calendar year, Maryland state law makes it unlawful for the employer to discriminate on the basis of sexual orientation. This law does not apply when the federal government is the employer.

An employee, who has a claim under Maryland law for discrimination based on his or her sexual orientation, must file a complaint in writing and under oath with the Maryland Human Relations Commission within six months of the date of the discrimination. The remedies available to a successful employee include:

Reinstatement or hiring of the employee
Back pay
Compensatory damages (between $50,000 and $300,00 depending on the size of the employer)
Attorneys’ fees and costs

Maryland County Laws

Some counties in Maryland provide more extensive protections to employees who face discrimination because of their sexual orientation. These counties are: Montgomery County, Prince George’s County, and Howard County.

Howard County

Howard County’s discrimination laws apply to employers who have five or more full or part-time employees for 20 or more weeks in the current or proceeding calendar year. If you have a discrimination claim in Howard County, you must report your complaint to the Howard County Office of Human Rights within six months of the date that the discrimination took place.

Montgomery County

Montgomery County’s discrimination law covers any employer who employs one or more individual, whether the individual is compensated for her work or a volunteer. If you have a discrimination claim in Montgomery County, you must report your complaint to the Montgomery County Commission on Human Rights within one year of the date the discrimination took place.

Prince George’s County

Prince George’s County’s discrimination law covers any employer who has employed at least one employee for a total of 40 hours in the current or proceeding calendar year. If you have a discrimination claim in Prince George’s County, you must report you compliant to the Prince George’s County Human Relations Commission within 180 days of the date the discrimination took place.

If you believe that you have been subjected to discrimination based on your LGBT status, contact the experienced lawyers at Katz, Marshall & Banks, LLP for an evaluation of your case with no further obligation.