Does “Sex” Encompass Sexual Orientation and Gender Identity? The Supremes Will Soon Decide

By Lindsey A. White and Chad M. Horton - Shawe Rosenthal LLP

May 15, 2019

A more conservative Supreme Court than we’ve seen in recent history is poised to consider whether Title VII’s prohibition on discrimination based on “sex” includes sexual orientation and gender identity. The Supreme Court has agreed to hear a trio of cases in the 2019-2020 term, which begins in October. We previously wrote on this topic here as the Circuit split was developing.

Not even the federal government tasked with enforcing employment discrimination laws agrees on whether Title VII covers sexual orientation. The Department of Justice reversed course during the Trump administration and now takes the position that sexual orientation is not covered, whereas the Equal Employment Opportunity Commission is holding firm to its position, first adopted in 2015, that sexual orientation is covered, as is gender identity. Additionally, under an Executive Order signed by President Obama (not yet rescinded by President Trump) and enforced by the Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discriminating against applicants and employees on the basis of sexual orientation and gender identity, in addition to (and separate from) sex.

The Supreme Court will resolve a Circuit split on sexual orientation coverage through two cases.  In Altitude Express v. Zarda, the Second Circuit held Title VII covers sexual orientation, whereas in Bostock v. Clayton County, Georgia, the Eleventh Circuit concluded the opposite.

Additionally, in R.G. & G.R. Harris Funeral Homes Inc. v. U.S. Equal Employment Opportunity Commission et al., the Supreme Court will consider whether Title VII encompasses discrimination based on gender identity/transgender status. In R.G. & G.R., which we discussed in a prior blog post, the Sixth Circuit held Title VII prohibits discrimination on the basis of transgender/transitioning status as well as under the Price Waterhouse sex-stereotyping theory.

Lower courts have largely expanded Title VII coverage to gender identity under the theory of “sex stereotyping” from a 1989 Supreme Court case, Price Waterhouse v. Hopkins. Price Waterhouse involved a female employee who claimed she was denied partnership due to her failure to conform to gender norms. Specifically, she was told that to improve her chances for promotion, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that sex stereotyping was a form of discrimination based on sex.

This issue is ripe for consideration as lower district and appellate courts alike continue to grapple with what one small word – “sex” – does or does not cover. In our April 2019 E-update, we covered O’Daniel v. Industrial Service Solutions, in which the Fifth Circuit reaffirmed its position that “Title VII in plain terms does not cover ‘sexual orientation,'” even while acknowledging that sister Circuits have found to the contrary.

In another recent case, conceding that the line between claims based on gender stereotyping and sexual orientation seems “arbitrary,” the U.S. District Court for the Eastern District of Pennsylvania upheld Third Circuit precedent that Title VII’s prohibitions on sex discrimination do not encompass discrimination based on sexual orientation. In Doe v. Parx Casino, the court dismissed a Title VII lawsuit alleging that a casino dealer was subjected to a hostile work environment and eventually fired because she is a lesbian.  The employee, who claimed to have a “masculine gender expression,” alleged that she experienced frequent harassment from her coworkers.  At least two employees mis-gendered her and called her “sir.”  She was ostracized by coworkers who refused to sit with or otherwise associate with her.  When Plaintiff attempted to raise the issue during a pre-shift meeting that included coworkers, she was told by management to stop interrupting and sit down, notwithstanding other employees who were allowed to interrupt meetings in a similar manner.  The employee was later terminated for having a negative interaction with a customer.

The Pennsylvania federal district court reluctantly followed Third Circuit precedent, holding that Title VII does not prohibit discrimination based on sexual orientation while openly questioning whether the line between gender stereotyping claims and sexual orientation claims is “arbitrary.”  The court noted that while the issue is worthy of reconsideration, it could not deviate from circuit precedent.  Thus, while the employee’s claims were dismissed, the court did so without prejudice to her right to amend the complaint to allege a sex stereotyping claim (which may have better success).

Despite the uncertainty at the federal level, 21 states and Washington, D.C. expressly prohibit discrimination based on sexual orientation and gender identity (two states interpret the prohibition against sex discrimination to include these categories even though the statute does not expressly identify them, and one state expressly prohibits sexual orientation discrimination only). The Supreme Court ruling will not affect these laws.

Stay tuned—the Supreme Court will consider these cases during the 2019-20 term.