What is Discrimination Based on Sex?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 23, 2019

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.

Title VII of the Civil Rights Act of 1964 states, “It shall be an unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual’s ... sex ....” It also says, “It shall be an unlawful employment practice for an employment agency to ... discriminate against, any individual because of his ... sex ....” Under Definitions, Title VII says, “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work ....” (emphasis added). It does not further discuss inclusions or exceptions.

Despite Title VII’s continued use of the term “sex,” courts have used that term and “gender” interchangeably in many circumstances. No one disputes that Title VII applies to both gender discrimination and sexual harassment. Gender discrimination occurs when a negative employment action is taken because of someone’s gender or something related to his/her gender. Sexual harassment usually involves a benefit offered (or a negative outcome avoided) in exchange for a sexual favor or offensive behavior of a sexual nature occurring in the workplace. It is well settled that discrimination protection extends to both males and females, whether they be referred to as sexes or genders.

So, does “because of sex” or “on the basis of sex” include anything other than these three prohibited behaviors? It does. The definition has been expanded a few times. The Supreme Court recognized in 1989 that sex stereotyping was unlawful under Title VII. This case involved a female employee who was denied partnership in an accounting firm because her employer did not deem her appearance to be feminine enough for the more prestigious position. The circuits are split as to whether it includes sexual orientation or gender identity. Even the current Department of Justice and the Equal Employment Opportunity Commission offer vastly different guidance on this definition.

In 1998, Justice Scalia, known by many as the conservative anchor of the Supreme Court for a quarter century, wrote on behalf of a unanimous court that same-sex sexual harassment is actionable under Title VII. He acknowledged that same-sex sexual harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII” and went on to explain that “statutory prohibitions often go beyond the principal evil to cover reasonable comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

The Supreme Court also held in 1971 that subgroups of protected classes are protected by Title VII. In this case, the discrimination alleged was against women with young children, not all women. If used as precedent today, this reasoning could lead to rulings that bias against members of LGBT subgroups is a form of sex discrimination.

Even though the original definitions of “because of sex” and “on the basis of sex” have evolved and likely will evolve further, the Supreme Court in 2014 carved out an exception to another federal statute by ruling that some employers may be able to skirt federal mandates by citing religious freedom protections. This case dealt with whether an employer who, based on religious beliefs, objected to providing birth control coverage to employees as required by the Affordable Care Act.

The Supreme Court is scheduled to consider three sexual discrimination cases this fall: one involves gender identity and two involve sexual orientation. If the Court reaches decisions on the issues in these cases, we will have more clarity in the evolving Title VII definition of “sex.” One of these cases, Harris Funeral Homes, has an interesting twist. The EEOC, who has always held that Title VII covers gender identify and sexual orientation discrimination, brought suit on behalf of a transgender employee. The DOJ represents the EEOC when its cases reach the Supreme Court and filed a brief (which the EEOC did not sign) last week arguing against the very premise upon which the EEOC filed the original lawsuit. With three opportunities to bring all the courts and all the government agencies together on one definition, I hope they take at least one of them.