By Jonathan Bryant, Equal Employment Opportunity Commission
Last week (see below), we took a look at a paragraph based on a 1984 ruling that was removed from a 2014 opinion. In Ulane v. Eastern Airlines, Inc., the Seventh Circuit held that Title VII does not protect transgender individuals or protect against sexual orientation discrimination.
But the Supreme Court has issued two important opinions bearing on the question since Ulane was decided. First, it recognized that “sex” as used in Title VII encompasses both biological sex as well as cultural and social expectations of gender conformance. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Hopkins was denied partnership. Her sponsor suggested that her chances at her next opportunity would improve if she walked, talked and dressed more femininely; wore make-up and jewelry; and styled her hair. This, the Court held, was evidence of discrimination because of sex, for the partnership held Hopkins to its stereotyped expectations of how a woman should look and act.
Second, the Supreme Court held that discrimination because of sex is unlawful discrimination even when the offender and the victim are of the same sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Until this decision, the lower courts had ruled that Oncale enjoyed no recourse under Title VII because the supervisors who subjected him to “sex-related, humiliating actions,” sexually assaulted him and threatened him with rape were also male. As the Supreme Court acknowledged, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of legislators by which we are governed.” Id. at 79.
The Sixth Circuit concluded these Supreme Court cases “eviscerated” Ulane’s approach. Smith v. City of Salem, Ohio, 378 F.3d 566, 573 (6th Cir. 2004) (holding transgender female states a Title VII claim by alleging adverse employment actions were taken based on transgender status). And the Eleventh Circuit has stated plainly that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011).
Despite these developments, the Seventh Circuit has stuck to its holding in Ulane. In addition to Hamner, the Court in another case denied relief to the victim of workplace harassment motivated by his perceived homosexuality. Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000).
More recent signs have shown the Court may be ready to forge a broader path of Title VII coverage that encompasses LGBT status. During oral argument on challenges to Indiana and Wisconsin’s marriage bans, the Honorable Judge David Hamilton noted that a growing body of professional studies across disciplines acknowledge that sex discrimination encompasses a “linkage between sex, sex stereotypes, and discrimination against homosexuals" and that discrimination against homosexuals “is a reflection of sex role stereotypes.”(Baskin v. Bogan, Oral Arg., Aug. 26, 2014, available at 19:15–19:50.) And in its amended Muhammad opinion, the Court deleted the quoted language, as urged by the Equal Employment Opportunity Commission as amicus. (The ACLU, Human Rights Campaign, Lambda Legal Defense and Education Fund, and Transgender Law Center also participated as friends of the court.) Are these isolated incidents of no consequence or the first steps of a longer journey? Time and—as we’ll see over the next posts—the Commission’s efforts will tell.
Per IndyBar Board policy, only the current blog post is publicly available. IndyBar members have access to all section and division postings by logging in to the website. Previous posts in this series will be viewable in PDF format. See below for previous entries in this blog series:
In a Small Step, Seventh Circuit Signals Greater Recognition of Title VII Rights of LGBT Employees
This post is authored by Jonathan Bryant, Trial Attorney for the U.S. Equal Employment Opportunity Commission in its Indianapolis District Office. The views expressed in this post are his own, not necessarily those of the Commission. You can email him at Jonathan.Bryant@eeoc.gov.