Diversity Insight

The Open Question of Discrimination Based on Sexual Orientation

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. Throughout the country, courts have reached different conclusions about whether Title VII’s “on the basis of sex” language prohibits discrimination based on sexual orientation and gender identity.Sexual Orientation

The U.S. Supreme Court recently announced it will weigh in on the issue, deciding three cases in which employees alleged they suffered discrimination based on their sexual orientation and another case in which an employee claimed she was discriminated against on the basis of her gender identity.

The first case involves a gay skydiving instructor from New York who claimed he was fired because of his sexual orientation. Ruling in the employee’s favor, the U.S. 2nd Circuit Court of Appeals held that discrimination based on sexual orientation violates Title VII.

The second case involves a gay county advocate from Atlanta who claimed he was fired because of his sexual orientation. The 11th Circuit ruled in the employer’s favor, holding that discrimination on the basis of sexual orientation does not violate Title VII.

The third case involves a transgender funeral director from Ohio who was terminated for violating the funeral home’s dress code. The funeral home is asking the Supreme Court to overrule precedent from the Equal Employment Opportunity Commission (EEOC) stating that discrimination on the basis of gender identity violates Title VII.

The cases will be heard in October, with a decision likely to be issued in 2020. In the meantime, employers may be uncertain about whether state law and applicable federal law prohibit discrimination based on sexual orientation and gender identity. But even if the Supreme Court rules that Title VII doesn’t prohibit such discrimination, employers could still be at risk of liability depending on how the Court addresses precedent that prohibits discrimination based on gender stereotypes.

Ball of Confusion

Many employers have been left thoroughly confused as they get conflicting signals from the courts, federal agencies, and state-level laws. For example, I practice in Idaho where employers are under the jurisdiction of the 9th Circuit, which unfortunately has provided less-than-clear guidance about whether Title VII prohibits discrimination based on sexual orientation and gender identity. For instance, in a 2002 case, Rene v. MGM Grand Hotel, Inc., the 9th Circuit held only that “an employee’s sexual orientation is irrelevant for purposes of Title VII” and the law “neither provides nor precludes a cause of action for sexual harassment.”

However, district courts in the 9th Circuit have held that Title VII prohibits discrimination based on sexual orientation. In University, a federal district court in California reasoned that “it is impossible to categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex or from gender stereotypes,” and claims of discrimination based on sexual orientation are therefore covered by Title VII. District courts in the 9th Circuit have also held that claims of discrimination based on gender identity are covered by Title VII.

Like Title VII, the Idaho Human Rights Act (IHRA) prohibits discrimination “because of, or on the basis of, race, color, religion, sex or national origin.” The purpose of the IHRA is to provide for the execution within Idaho of the policies embodied in the federal Civil Rights Act. Idaho courts look to federal law for guidance when interpreting the Act.

Notably, the Idaho Legislature has repeatedly shot down proposed legislation that would add the words “sexual orientation” and “gender identity” to the IHRA. The legislature’s refusal to add those words to the Act would seem to cut against the argument that the law prohibits discrimination based on sexual orientation and gender identity even if it’s interpreted consistent with federal law.

Whether the IHRA prohibits discrimination based on sexual orientation or gender identity is something of a moot point, however, because an employee could still file a discrimination claim under Title VII. For the time being, it’s important to note that there is precedent in the 9th Circuit that could be used to support a discrimination claim based on sexual orientation or gender identity.

Employees Can Still File Title VII Claims Based on Gender Stereotypes

Although the question of discrimination based on sexual orientation and gender identity is still up in the air, the U.S. Supreme Court held in a 1989 case, Price Waterhouse v. Hopkins, that Title VII prohibits discrimination based on gender stereotypes.

Anne Hopkins was a senior manager who was up for partner at Price Waterhouse. Although her performance reviews were outstanding, she was told that she didn’t make partner because she wasn’t particularly feminine. Partners described her as “macho” and in need of “a course at charm school.” She was told that to better her chances for partnership, she would need to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Supreme Court held that Title VII is “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” As a result, it found that discrimination based on sex or gender stereotypes violates Title VII.

Even if the justices rule that Title VII doesn’t prohibit discrimination based on sexual orientation and gender identity, discrimination based on gender stereotypes would still be prohibited if the Court doesn’t expressly overrule Price Waterhouse. That would leave employers in the precarious position of being permitted to discriminate against employees based on sexual orientation and gender identity but being prohibited from discriminating based on gender stereotypes.

There’s no clear distinction, however. Discriminating based on gender identity is essentially discriminating against someone because she isn’t fulfilling certain gender stereotypes about how women should look and act. Discriminating based on sexual orientation is essentially discriminating against someone because he isn’t conforming to stereotypes about whom he should be attracted to based on his sex.

Bottom Line

The U.S. Supreme Court may rule that Title VII prohibits discrimination based on sexual orientation and gender identity, but a ruling to the contrary will require further analysis of whether discrimination based on gender stereotypes is still prohibited by Title VII (i.e., whether Price Waterhouse has been overruled).

If discrimination based on gender stereotypes is still prohibited, employers will toe a very fine line if they choose to discriminate against employees on the basis of sexual orientation or gender identity because those forms of discrimination are very closely related to discrimination based on gender stereotypes.

Molly E. Mitchell is an attorney at Elam & Burke, P.A., in Boise—and editor of Idaho Employment Law Letter. She can be reached at mem@elamburke.com.