Title VII of the Civil Rights Act of 1964, as amended (Title VII), does not include "sexual orientation" or "sexual identification" as a protected category. Employers should know that this fact is a starting point, not an ending point, when it comes to LGBT-related discrimination claims. Here are six things every employer should know about these types of claims:
1. The EEOC already recognizes them: in 2012, the EEOC issued an opinion, binding on other federal agencies, wherein it decided that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex. http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.
2. Sex discrimination based on gender stereotyping is a leading theory to support LGBT-related claims: more than twenty-five years ago, the United States Supreme Court recognized gender stereotyping as a form of sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Hopkins, the Court agreed that Price Waterhouse discriminated against a female candidate for partner when it held her for reconsideration, as opposed to promoting her to partner, based on a number of partners' beliefs that she was "macho," needed a course in charm school, and overcompensated for being a woman. Hopkins was told that in order to improve her chances for partnership, she needed to walk, talk and dress more femininely, wear make-up and jewelry, and style her hair.
Agreeing that Hopkins asserted a viable claim for sex discrimination based on gender stereotyping, the Court noted that an employer who objects to 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 in the workplace and out of a job if they do not. The Court was clear that "Title VII lifts women out of this bind."
3. The EEOC has made LGBT issues a top priority: in its Strategic Enforcement Plan issued in December 2012, the EEOC identified LGBT coverage under Title VII as a top enforcement priority, and as a result, it has been accepting charges of discrimination based on sexual identity and/or orientation and vigorously pursuing related litigation. For example, in March 2016, the EEOC filed a lawsuit against Scott Medical Health Center, P.C. in federal court in Pennsylvania claiming the employer violated Title VII when it allegedly subjected an employee to harassment because of his sexual orientation and/or because he did not conform to the employer's alleged gender-based expectations, preferences, or stereotypes.
4. LGBT-related discrimination claims are on the rise: the EEOC recently reported that in FY 2015, it received nearly 1,500 charges that included allegations of sex discrimination related to sexual orientation and/or gender identifying/transgender status, which represents an increase of approximately 28% over the total LGBT charges filed in FY 2014.
5. Texas courts have applied the gender stereotyping theory: for example, in a 2013 decision, the Fifth Circuit applied, and not for the first time, the gender stereotyping theory when it affirmed a jury verdict for a man who claimed he was sexually harassed because he wasn't a manly-man. http://caselaw.findlaw.com/us-5th-circuit/1645688.html
6. Many Texas cities have enacted local ordinances prohibiting discrimination based on sexual orientation and/or gender identity: in late 2015, the City of Dallas amended Chapter 46 of the Dallas City Code making it illegal to discriminate against someone based on his or her real or perceived gender identity. Other cities, including Plano, Houston, San Antonio, Fort Worth, Austin, and El Paso, have enacted local ordinances, in varying forms, that protect individuals against discrimination based on sexual orientation and/or gender identity.
Considering the recent backlash against the LGBT community, such as the new North Carolina law banning local governments from allowing transgender people to use public restrooms and locker rooms for the gender with which they identify, employers can expect that the broader issue of protected status for LGBT individuals "based on sex" will make its way to the highest court.