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 historically 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.  Furthermore, recent developments have led some courts and important federal agencies to recognize legal protections for LGBT employees.

I. Protections Provided By Title VII

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

Sexual Orientation and Transgender or Gender Identity Discrimination

Historically, courts have held that Title VII, the main federal law protecting employees from discrimination, did not prohibit discrimination or harassment based on an employee’s sexual orientation.  That position was based on the lack of explicit language in Title VII referring to sexual orientation.  In the decades that followed the passage of Title VII, there were several unsuccessful efforts by LGBT workers to sue their employers for discriminating against them on the basis of their sexual orientation, but they all failed.

Recently, however, the tide has begun to turn.  The federal Equal Employment Opportunity Commission (EEOC), which in addition to enforcing Title VII also reviews and decides discrimination cases brought by federal employees against their employers, held in 2012 that Title VII’s prohibition of discrimination on the basis of sex extends to discrimination on the basis of transgender identity.  Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012).  This holding was consistent with a pair of decision that the Sixth Circuit opinion had issued years before.  Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004).  Then, in 2015, the EEOC held that discrimination on the basis of sexual orientation was prohibited under Title VII as unlawful discrimination on the basis of sex.  Baldwin v. Fox, EEOC DOC 0120133080, 2015 WL 4397641 (July 16, 2015).  Together, the Macy and Baldwin cases represented significant developments, first because they extended the protections of Title VII to LGBT employees in the federal sector, and second because they put the agency responsible for enforcing Title VII on record as recognizing protections for LGBT employees under the statute.

The reaction to Macy and Baldwin in the federal courts has been mixed, with some citing the cases approvingly, and others refusing to defer to the EEOC’s interpretations.  See Roberts v. Clark Cty. Sch. Dist., No. 215CV00388JADPAL, 2016 WL 123320, at *9 (D. Nev. Jan. 11, 2016) (rejecting an argument that the EEOC’s holding in Macy should not be given deference); Koke v. Baumgardner, No. 15-CV-9673 (LAK), 2016 WL 93094, at *1 (S.D.N.Y. Jan. 5, 2016) (holding that it remains to be seen whether Title VII proscribes workplace discrimination based on sexual orientation, but citing to Baldwin for the proposition that it might); Isaacs v. Felder Servs., LLC, No. 2:13CV693-MHT, 2015 WL 6560655, at *3 (M.D. Ala. Oct. 29, 2015) (“This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII.”); Burrows v. Coll. of Cent. Florida, No. 5:14-CV-197-OC-30PRL, 2015 WL 5257135, at *2 (M.D. Fla. Sept. 9, 2015) (holding that Baldwin is only persuasive authority, and without a decision from the Supreme or Circuit Courts, the prevailing legal position prevails).  This small body of case law is far from definitive, but suggests an openness in at least some courts to the EEOC’s reasoning.

The question of whether Title VII prohibits discrimination on the basis of sexual orientation is currently before two federal appellate courts.  Regardless of the outcome of these cases, the issue seems likely to come before the Supreme Court at some point in the near future.  The outcome of that case will have a major impact on the level of protection federal law extends to LGBT employees.

Same-Sex Harassment

While courts have traditionally held that harassment or discrimination based on an employee’s sexual orientation is not protected, even before the recent developments expanding protections for LGBT workers, the Supreme Court had 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.”

The reasoning underlying Price Waterhouse provided an opening for practitioners to bring sex stereotyping claims against employers when LGBT workers are subjected to discrimination because those workers do not conform to gender norms or roles.  See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316-20 (11th Cir. 2011) (in case decided on equal protection grounds, court notes that Title VII’s sex discrimination protections extend to transgender people under a sex-stereotyping theory); Smith v. City of Salem, 378 F.3d 566, 571-75 (6th Cir. 2004) (discussing Price Waterhouse and holding that homosexual employee properly stated a Title VII sex discrimination claim where he alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind employer’s adverse actions); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (same); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (claim for sex discrimination could be grounded in comments targeting gay man for “effeminate behavior,” but dismissing claim because sex stereotyping theory had not been advanced before trial court); Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated on other grounds, 523 U.S. 1001 (1998).  Even as we wait for the courts to resolve the question of whether Title VII prohibits discrimination on the basis of sexual orientation, the reasoning of these cases provides one avenue for making a claim for discrimination against LGBT employees under Title VII.

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.  Therefore, employees who claim to have been retaliated against either for efforts to oppose or combat discrimination against themselves or their coworkers on the basis of sexual orientation or transgender identity have to show that the complained-of discrimination was prohibited under Title VII.  In jurisdictions that have extended the prohibitions of Title VII to cover sexual orientation and transgender identity discrimination, complaints about such discrimination will qualify for protection against retaliation.  In jurisdictions that have not adopted this interpretation of Title VII, employees who are retaliated against will need to assert their claims based on same-sex harassment or gender stereotyping.

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

Even before the EEOC issued its decisions extending the protections of Title VII to LGBT workers, civilian LGBT employees in the federal sector enjoyed greater protections.  On May 28, 1998, President Bill Clinton signed Executive Order 13087, which amended Executive Order 11478 – signed by President Richard Nixon and prohibiting discrimination in the federal workforce on the basis of certain protected statuses – to prohibit discrimination on the basis of sexual orientation in the competitive service of the federal civilian workforce.  The class of protected workers includes employees of the District of Columbia government, the U.S. Postal Service, and civilian workers in the U.S. Armed Forces, but excludes employees in the excepted services (e.g., the Central Intelligence Agency, Federal Bureau of Investigation, and the National Security Agency) and uniformed members of the U.S. military.  The White House made clear that Executive Order 13087 merely stated the Clinton Administration’s policy, and did not and could not create any new enforcement rights for employees (such as the right to proceed before the EEOC) that were within the authority of Congress alone to establish.  That said, federal employees covered by Executive Order 13087 acquired the right to bring complaints of discrimination before the Office of Special Counsel on the basis of sexual orientation, and to appeal adverse determinations of those grievances to the Merit Systems Protection Board.

President Barack Obama again expanded employment protections for LGBT federal sector workers when he signed Executive Order 13672 on July 21, 2014, which further amended Executive Order 11478 to add gender identity to the class of protected statuses.  President Obama’s Executive Order 13672 also amended Executive Order 11246, which President Lyndon Johnson signed to prohibit discrimination by federal government contractors and sub-contractors on the basis of race, color, religion, sex, or national origin, to add sexual orientation and gender identity to the protected statuses.  While the addition of gender identity to the class of statuses protected by Executive Order 11478 (i.e., discrimination in the competitive services) applied immediately, the federal contractor protections were not applicable until December 9, 2014,  when the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its Final Rule Implementing Executive Order 13672.  The Final Rule, which was not subject to notice and comment came into effect on April 8, 2015, provides that companies who violate OFCCP rules by discriminating on the basis of sexual orientation or gender identity run the risk of being declared ineligible to receive federal contracts.  The Final Rule does not require contractors to conduct data analysis regarding sexual orientation or gender identity of their applicants or employees, nor does it require contractors to collect information about applicants’ or employees’ sexual orientation or gender identity.  However, the Final Rule does not prohibit a contractor from questioning applicants and employees to provide this information voluntarily, although asking such questions could be prohibited by state or local law, and a contractor may not use any information gathered from such inquiries to discriminate against an applicant or employee based on sexual orientation or gender identity.  Federal contracting agencies also must include gender identity and sexual orientation as prohibited bases of discrimination under the Equal Opportunity Clause included in federal contracts.

Importantly, Executive Order 13672 does not affect the existing exemption for religiously-affiliated federal contractors from Executive Order 11246, which President George W. Bush added in 2002 via Executive Order 13279.  President Bush’s order provides that religiously affiliated contractors (which are defined to include religious corporations, associations, educational institutions, or societies) can legally favor individuals of a particular religion when making employment decisions without violating Executive Order 11246.  Executive Order 13279 does not require that contractors obtain pre-approval to invoke the religious exemption, although cautious contractors tend to submit written exemptions requests to OFCCP’s Division of Program Operations and set forth the basis for the exemption in writing.  Despite this limitation, the issuance of these executive orders led to fairly robust protections for LGBT workers in the federal government, even as their private sector counterparts were largely left unprotected against workplace discrimination.

III. State And Local Laws

As of 2016, twenty-two states and the District of Columbia have laws that prohibit employers from discriminating against or harassing employees based on their sexual orientation or gender identity or expression: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. In addition, public employers in the following eight states are currently subject to executive orders, administrative orders, or personnel regulations that prohibit discrimination against public employees based on sexual orientation and gender identity: Delaware; Indiana; Kansas; Kentucky; Massachusetts; Michigan; New York; and Pennsylvania. Further, there are four states that currently prohibit discrimination against public employees on the basis of sexual orientation alone: Arizona; Missouri (state executive branch employees only); Montana; and Ohio.

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.