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Tuesday, August 2, 2016

When Women Don’t Act Like Women-Sexual Orientation and Gender Identity - LGBT Discrimination and Title VII’s Prohibition on Employment Sex Discrimination

There has been conflicting interpretations and opinions for decades on whether the Civil Right Act's Title VII prohibition on employment sex discrimination encompasses employment discrimination based on gender identity and sexual orientation. Unlike the New Jersey Law Against Discrimination, the Federal Civil Right Act's Title VII does not specifically include within the statute’s language, the protected characteristics of sexual orientation and gender identity.

Plaintiffs who lived in more conservative states that did not have strong state discrimination statutes protecting employees from LGBT discrimination in the workplace, were left with having to litigate LGBT discrimination claims under Title VII, with mixed results.

However, The Equal Employment Opportunity Commission (EEOC), released a newsroom report on July 8, 2016, that based on an accumulation of Supreme Court and other Federal Court opinions going back as far as 1989, that it interprets Title VII's prohibition on sex discrimination as including employment discrimination based on sexual orientation and gender identity. The EEOC released a report that it will affirmatively enforce Title VII to include sexual orientation and gender identityHopefully, this recent more definite stance regarding Title VII will influence future court decisions so as to include the protected characteristics of sexual orientation and gender identity in sex discrimination cases filed under Title VII. 

The Commission’s Strategic Enforcement Plan (SEP) first adopted in 2012, included coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions and made enforcement of LGBT employment rights a priority.

Title VII of the Civil Rights Act of 1964 has not been changed in its statutory language and no new categories of protected characteristics have been added so as to articulate protecting GLBT persons. As of today’s post, Title VII still does not explicitly include “sexual orientation” or “gender identity” in its list of protected classes. What has changed is that consistent with Supreme Court cases and other Federal decisions, is that employment actions motivated by gender stereotyping are to be considered unlawful “sex” discrimination under Title VII. Discrimination against employees on the basis of sexual orientation and gender identity is now encompassed in Title VII in the prohibition against “sex” discrimination.

Two US Supreme Court decisions that were seminal cases in structuring the evolving law on discrimination against employees on the basis of sexual orientation and gender identity were Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

When Women Don't Act Like Women

In Price Waterhouse v. Hopkins, the employee Ann Hopkins was denied a promotion by Price Waterhouse in part because other partners at Price Waterhouse believed  that Ann Hopkins was not feminine enough, did not behave in a manner as women ought to behave. Ann Hopkins was told, among other things, that she needed to "walk more femininely, talk more femininely, and dress more femininely" in order to secure a partnership. Id. at 250. The US Supreme Court found that this was sex stereotyping and that such stereotyping based on the person's sex constituted evidence of sex discrimination.

The Court stated that within context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. The Court explained that Title VII's "because of sex" provision is a broad enough spectrum to include the entire range of disparate treatment of men and women resulting from sex stereotypes of how men and women ought to behave.

The Supreme Court recognized that when an employer treats men and women differently based upon expectations or assumptions about how persons of a certain sex should dress, behave, etc., it is sex stereotyping and therefore is unlawful employment sex discrimination under Title VII. 

Nine Years Later, Title VII Sex Discrimination Law Evolved to Include Sex Harassment by the Same Sex

In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court held that sex harassment by the same sex is sex discrimination under Title VII. This matter arose out of a lawsuit for sex discrimination in a case filed by a male oil-rig worker, Joseph Oncale, who claimed that he was repeatedly subjected to sexual harassment by his male co-workers.  

Oncale was working for Sundowner Offshore Services on a oil platform in the Gulf of Mexico, employed on an eight-man crew. Oncale was forcibly subjected to several sex-related, humiliating actions against him by his coworkers in the presence of the rest of the crew. Oncale's complaints to his supervisors produced no remedial action. Instead, the company's Safety Compliance Clerk called him a name suggesting homosexuality. Oncale eventually quit, and stated that he did so to avoid being raped or forced to have sex. He asked that his pink slip reflect that he voluntarily left due to sexual harassment and verbal abuse.

In the majority opinion, Justice Scalia noted that, while same sex harassment was not the original "principal evil" Congress was concerned with when it enacted Title VII.  But the Court  recognized that laws often evolve in a manner that statutory prohibitions often go beyond the original wrong that the statutes were passed to correct and prevent to cover reasonably comparable wrongs, and it is "ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." The US Court reasoned that Title VII prohibits discrimination because of sex and that this prohibition must extend to sex-based discrimination of any kind even when it is discrimination or sex harassment by the same sex. Id. at 79-80.

Fortunately for Plaintiffs living in New Jersey, they do not have to exhaust the administrative remedies of Title VII before they can file a lawsuit in Court. For New Jersey Plaintiffs, they can file a lawsuit for discrimination far more quickly (without having to undergo the timely process of first exhausting an administrative process) based on Gender Identity, Sexual Orientation, and/or Sex directly in State Court under the New Jersey Law Against Discrimination. Many studies have concluded that employment discrimination plaintiffs fare better in State Court than Federal Court. 

In one such study, it was reported that  plaintiffs in Federal Court won on 15% of employment discrimination cases during a twenty-seven year period. By comparison, in all other civil cases combined during the same twenty-seven year period, the plaintiffs won at a rate of 51%. Employment discrimination plaintiffs in federal court also get less time in court and have their cases thrown out, have their cases dismissed before trial.

What You Can Do

Every situation is fact specific, and if you believe you may be the target of an employer's illegal  Sex, Sexual Orientation or Gender Identity discrimination, be it blatant or subtle, please contact Hope A. Lang, Attorney at Law today for a free consultation. 

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.


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