Sexual Orientation and Gender Identity, Title VII, and the Supreme Court

“LAW Reviews” is an opinion series that provides timely commentaries from BU Law faculty on a variety of legal issues. The views expressed are solely those of the author and are not intended to represent the views of Boston University School of Law.

In light of the progress that Americans have made in the past quarter century accepting a spectrum of sexual orientations and gender identities, it is not only disheartening but also surprising that Congress has not passed an amendment to Title VII of the 1964 Civil Rights Act to prohibit employment discrimination on the basis of sexual orientation or gender identity in private as well as public employment. Legislation to extend coverage to sexual orientation discrimination was first introduced in Congress twenty-five years ago. Indeed, it seemed ready to pass, even as extended to cover gender identity discrimination, in the early days of the Obama administration in 2009, until Massachusetts voters chose Scott Brown over Martha Coakley and thereby denied Democrats a filibuster-proof Senate.

In the last decade, enlightened advocates, stymied by conservative Republican control of at least part of the legislative process, have turned to the courts to reinterpret Title VII to extend its coverage. These efforts have culminated in the Supreme Court’s review this term of three Court of Appeals decisions, two of which extended coverage to either sexual orientation or gender identity discrimination.

The Supreme Court’s treatment of these cases will be important. Because of statutes and judicial rulings in most of the more populous states as well as ordinances in almost all of our most populous cities, LGBTQIA+ workers can claim legal protection from discrimination in what is probably a substantial majority of American employment positions. But half of the states still do not have anti-employment discrimination statutes covering either sexual orientation or gender identity discrimination in private employment, and only a federal prohibition offers the kind of comprehensive protection that the LGBTQIA+ community deserves.

No one argues that Congress intended to cover either sexual orientation or gender identity discrimination in 1964 when Title VII was enacted. Instead, advocates of extended coverage claim that as developed by some previous decisions of the Court, the word “sex”—one of five categories protected expressly by Title VII—has an expansive meaning independent of the intent of Congress.

The argument may be stronger for the coverage of gender identity discrimination. The word “sex” has two primary meanings, one referring to a type of activity and the other to a status, roughly the same as gender. Congress intended the latter meaning, thinking of two bipolar genders. Today, we understand that gender is more fluid and acknowledge nonbinary and transgender as well as cisgender individuals. Since Congress intended the word “sex” to equate with gender status, if we can interpret Title VII’s words in light of current understandings of the words’ meaning, we can reasonably claim coverage of gender identity.

Coverage of sexual orientation as “sex” status, rather than sex activity, requires somewhat more problematic analysis, however. Advocates’ primary argument is that an employer who treats a male employee sexually oriented toward men worse than if the employee were a woman with this same sexual orientation toward men is differentiating based on gender status; since the gender of the employee determines the employer’s treatment, it is sex discrimination. The response is that the employer would treat a female employee with a same-sex orientation equally poorly as the male employee. The differentiating characteristic that actually causes the gay male employee’s poorer treatment thus is not the employee’s gender status, but rather his sexual orientation. Heterosexuals are advantaged over homosexuals, regardless of their gender.

The strongest precedent against this response and indeed more generally in support of the treatment of sexual orientation discrimination as sex discrimination is the Court’s 1989 decision in Price Waterhouse v. Hopkins. In this case, the Court held that an accounting firm’s denial of a partnership to a woman was prohibited sex discrimination because the decision was based on her personality being too aggressively “masculine” rather than conforming to a softer “feminine” prescriptive stereotype. The decision has been read by lower courts to condemn as sex discrimination any sex-differentiated prescriptive stereotyping of appropriate male and female behavior. Thus, many Courts of Appeals have found actionable as sex discrimination harassment against men for being “effeminate,” without consideration of evidence on whether women were also mistreated for being insufficiently “feminine.” If these decisions are correct, it seems a small step to find sex discrimination in differential treatment of a man for not conforming to a heterosexual male prescriptive stereotype without consideration of whether there would be better treatment of a woman who did not conform to a heterosexual female stereotype.

Price Waterhouse, however, could be read more narrowly by the current Court. If Ann Hopkins had conformed to the prescriptive stereotype of femininity that Price Waterhouse demanded of her, she may not have even been considered for a partnership because she would not have had a record of securing business without her more “masculine” aggressive personality. As Justice Brennan stated in his plurality opinion, “[a]n 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 and out of a job if they don’t.” A male prescriptive stereotype requiring aggression does not present men with the same dilemma.

This more narrow “Catch-22” reading of Price Waterhouse explains why courts have accepted employment codes that differentiate between appropriate attire and grooming for men and women, if they do not burden one sex more substantially. The more narrow reading also supports finding behavior codes that differentiate between appropriate sexual partners for males and females, if they do not burden one sex more substantially. Sexual orientation discrimination, of course, is much more unjust and corrosive of human autonomy than are differential dress or grooming codes. But whether such discrimination is, rather than only should be, covered by Title VII remains an open question for this Supreme Court term.

Michael Harper, professor of law and Barreca Labor Relations Scholar, is a leading authority in the areas of labor law, employment law, and employment discrimination law.

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