Gender Identity, Sexual Orientation, and Employment Discrimination Law

1. Gender Identity, Sexual Orientation, and Employment Discrimination Law Ann C. McGinley William S. Boyd Professor of Law Co-Director, Workplace Law Program UNLV Boyd School of Law 9th Circuit Conference March 11, 2019

2. 1964 Civil Rights Act, Title VII • “It shall be an unlawful employment practice for an employer … to discriminate against any individual because of such individual’s …sex….”

3. Issue • Does discrimination based on sexual orientation or gender identity occur “because of sex”? • NV law explicitly forbids employment discrimination based on sexual orientation and gender identity, but remedies not the same as federal law

4. Cases - Cert Petitions • Bostock v. Clayton Bd. Of Commissioners, Clayton County (11th Cir. 2018) (per curiam)(Discrimination based on sexual orientation is not illegal sex discrimination). • Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018) (Discrimination based on sexual orientationis illegal sex discrimination). • R.G. & G.R. Harris Funeral Homes v. EEOC (6th Cir. 2018) (Discrimination based on transgender status/transition is illegal sex discrimination).

5. Interesting Fact Cert petitions filed last spring & summer Rescheduled for conferences nine times

6. History (1964 – 2017) All circuits had concluded that discrimination based on sexual orientation or gender identity does not occur “because of sex.”

7. Price Waterhouse v. Hopkins, 490 U.S. (1989) • Illegal to discriminate because of a person’s failure to comply with gender stereotypes. • (Masculine women, feminine men used this case—straight, gay, and trans—to argue they were discriminated against because of sex).

8. Oncale v. Sundowner Offshore Services, Inc (1998). • Harassment of a person of the same sex is illegal under Title VII if it occurs because of sex. • Male on male harassment – if it occurred because of sexual orientation = not illegal. If it occurred because the victim not masculine enough = illegal.

9. Courts-Conflicts (Sexual orientation and Price Waterhouse) Some = no cause of action if the plaintiff was gay. Others = plaintiffs must prove discrimination because of failure to conform to gender expectations rather than because of gay—very difficult. 9Th Circuit – Rene v. MGM Grand Hotel (2002)(en banc) (plurality) (irrelevant that plaintiff was gay) Nichols v. Azteca Rest. (2001)(HWE created due to a man’s feminine nature or dress is illegal).

10. Courts – PW & Gender ID • Courts more open to transpeople under Price Waterhouse because dressing or acting in a way that defies social expectations is characteristic of being trans. • Still a question as to whether a transperson would have a cause of action if fired because of behavior or dress outside of work.

11. A Better Solution • It would be much cleaner if Title VII’s prohibition of sex discrimination included ban on sexual orientation and gender identity discrimination.

12. EEOC Changes Position: Acting as Tribunal Macy v. Holder (Apr. 20, 2012) Gender identity discrimination = sex discrimination Baldwin v. Foxx, (July 15, 2015) Sexual orientation discrimination = sex discrimination

13. Obergefell v. Hodges (2015). Same-sex marriage constitutionally protected Major influence on attitudes about Title VII Marry on Saturday and be fired on Monday!

14. Recent Circuit Splits – Title VII: Sexual Orientation/Transgender Status Is Illegal Discrimination Is NOT Illegal Discrimination Evans v. Georgia Regional Hosp. (11th Cir.)(en banc), cert denied, (2017)(sexual orientation) Wittmer v. Phillips 66 (5th Cir. 2018) (dicta) (transgender status). Hively v. Ivy Tech Community College (7th Cir. 2017) (en banc) (sexual orientation)

15. Arguments Pro—Title VII • Plain language – One can’t discriminate based on sexual orientation or gender identity without doing so based on sex. [Sex needs be only ”a motivating factor.”] • “But for” plaintiff’s gender, ER would not discriminate. • Association – It is illegal under Title VII to discriminate because of the race of one’s romantic partner. Why not sex? • Stereotyping – The ultimate sex stereotypes are: 1) People should be sexually attracted to persons of opposite sex; 2) People should dress and act in accordance with societal expectations of their biological sex.

16. Best Arguments Con—Title VII • Intent – Congress never intended ”sex” to include sexual orientation and gender identity. • Failed Amendments - Congress has tried over 25-year period to add “sexual orientation” and “transgender status” to Title VII or to pass other laws protecting these statuses in employment (ENDA).

17. On Plain Language “[S]tatutory 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 our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc. (J. Scalia) (holding that same-sex harassment is illegal under Title VII).

18. Employment Non-Discrimination Act • John Boehner refused to allow a vote • Bill supported by 60% of Americans

19. Recommended Reading • Ann C. McGinley, Erasing Boundaries: Masculinities, Sexual Minorities, and Employment Discrimination, 43 U. Mich. J. L. Ref. 713 (2010), available at https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1013&context=facpub. • Zack Ford, Supreme Court Poised to Drastically Reverse LGBTQ Equality, https://thinkprogress.org/the-six-lgbtq-cases-awaiting-consideration-from-the-supreme-court-fe5ea66d679d/.

20. Questions