On July 15, 2015, the Equal Employment Opportunity Commission (EEOC) issued a 17-page opinion letter which states that employment discrimination based on sexual orientation is forbidden under Title VII’s prohibition against “sex” discrimination. For those who want to read the letter, the relevant portion starts at page 5. While the EEOC’s interpretation of Title VII is not binding on the courts, many of which have ruled in the past (wrongly, in my opinion) that Title VII does not prohibit discrimination based on sexual orientation, this new opinion may be just the spark needed to encourage discrimination lawyers to aggressively pursue this matter until it is ultimately decided by the U.S. Supreme Court. The EEOC’s opinion on this matter seems obviously correct, given one particular precedent by the U.S. Supreme Court, so I’m kind of surprised that it’s taken so long for this battle to be ignited again. It’s about time for all federal and state courts to acknowledge that sexual orientation discrimination is already prohibited under Title VII.
We Lawyers Dropped the Ball on LGBT Discrimination under Title VII
I’ll admit that I’ve been guilty of giving a definitive “no” answer when asked whether sexual orientation discrimination was prohibited by federal law. It’s not that I thought that it shouldn’t be prohibited. I just knew that no court had previously accepted such an argument under Title VII. To show how convinced most lawyers were that making such an argument under Title VII was futile, one need only look at ENDA (the Employment Non-Discrimination Act). ENDA is a proposed federal law which would specifically prohibit employment discrimination based on sexual orientation or gender identity. It has been repeatedly put forth and shot down in Congress since 1994. If lawyers thought that Title VII already prohibited sexual orientation discrimination, ENDA would be completely unnecessary — why pass a new law that prohibits the same thing as an already-existing law?
Given the failure of ENDA to successfully pass through Congress for 20 years, maybe we lawyers should have fought the Title VII battle more aggressively. I’m not saying that ENDA should be dropped entirely. It’s a good “plan B” if the Supreme Court engages in some not-unprecedented hypocrisy when the Title VII sexual orientation argument reaches its halls. However, ENDA should have been “plan B”, and fighting the Title VII fight should have been “plan A”. It seems that after receiving some unfavorable rulings on this issue by lower federal courts, lawyers mostly gave up on arguing sexual orientation discrimination under Title VII. This is really a shame, because as the EEOC opinion states, there is one particular Supreme Court precedent which should make the case for sexual orientation discrimination being prohibited by Title VII a slam dunk.
Discrimination Based On Gender Stereotypes is Prohibited Under Title VII According to Supreme Court Precedent
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court ruled that the “sex” discrimination prohibited under Title VII included discrimination against an employee who fails to conform with gender stereotypes. In Hopkins, the plaintiff was a woman who was denied a promotion at least in part because she wasn’t “feminine” enough. Her employer suggested that she act “more femininely”, wear makeup, have her hair done, wear jewelry, etc. Despite the fact that these “act more feminine” suggestions indicate that the discrimination against her was not due to her merely being a woman (because, presumably, a more feminine woman would have gotten the promotion), the Supreme Court found this conduct to violate Title VII’s prohibition against sex discrimination because the prohibition extended to discrimination based on gender stereotypes.
When we commonly think of gender stereotypes, we think of “women acting like women” and “men acting like men,” whatever that means. I can’t think of a more common or pervasive gender stereotype than the notion that men should be attracted to women and women to men. Can’t all the bigotry against the LGBT community be boiled down to the notion that its members don’t act as their genders “should”? Gay men don’t “act like men” because they are attracted to men. Lesbians don’t “act like women” because they are attracted to women. Doesn’t that fall squarely within Title VII’s prohibition against discrimination due to gender stereotypes, as stated in Hopkins? Can anyone make the argument with a straight face that discrimination against a woman who doesn’t wear makeup is based on a sexual stereotype but discrimination against a woman who isn’t attracted to men isn’t?
Is a Nationwide Ban Against LGBT Employment Discrimination Under Title VII Imminent?
While I don’t put it past certain members of the Supreme Court to do the mental gymnastics necessary to distinguish cases of LGBT discrimination from Hopkins, in light of recent favorable decisions regarding gay marriage, now seems like the perfect time to put sexual orientation discrimination under Title VII to the test. Hopefully, lawyers with the resources to take this issue before the Supreme Court will make this happen — and the sooner the better. It’s been 26 years since the Hopkins ruling, and in all that time very few lawyers have tested LGBT discrimination cases under Title VII. Most of us were convinced that such claims were DOA and not worth pursuing. Maybe last month’s EEOC opinion will light the fire needed to start this fight anew. If being expected to have a certain sexual orientation isn’t a gender stereotype under Hopkins, I don’t know what is. It just seems so obvious — maybe that little confirmation by the EEOC is the push we needed to really fight this issue.