Ari Ezra Waldman | Discrimination | ENDA | Law - Gay, LGBT | Transgender

Does Title VII Protect Transgender People and Gays from Employment Discrimination?

BY ARI EZRA WALDMAN

When the Equal Employment Opportunity Commission (EEOC) stated that gender-identity discrimination is banned under Title VII's prohibition of "discrimination on the basis of sex," my friends' and acquaintances' Facebook and Twitter updates varied among the congratulatory ("Good work," directed at Tico Almeida), thankful ("Thank you Chai," directed at EEOC Commissioner Chai Feldblum), irrelevant ("The Shahs of Sunset is a crazy show"), bitter ("How did this happen before sexual orientation discrimination?"), shock ("This is so HUGE" or "It's a real game changer!"), and casual detachment ("It's basically been the law for some time").

600px-US-EEOC-SealInside this quick tour through human emotion are two seemingly incompatible reactions -- shock and casual detachment -- that actually describe the impact this EEOC statement had on the state of employment discrimination law. On the one hand, the argument for shock is simple: never before have the executive branch, Congress, or the federal courts explicitly stated that transgender persons are protected against employment discrimination. And, in a world where the transgender community is the subject of ridicule and often forgotten by its allies, that is no small feat. On the other hand, the legal context made this decision possible: the plain language of Title VII should protect transgender Americans and federal case law has been trending in that direction for decades. 

The bitter reaction struck me like a Katniss Everdeen arrow to my heart. [AEW Note: Read The Hunger Games].

Gay persons have been fighting tooth and nail for protections against employment discrimination and loud grumblings persist that Congress failed to pass the Employment Non-Discrimination Act (ENDA) because certain lobbying groups insisted on including protections for transgender employees. That kind of talk is, at best, incorrect, and, at worst, hateful. But, the EEOC's recent decision demands that we revisit the following question: If Title VII protects transgender persons from employment discrimination, does it also protect gays? The legal argument for transgender protections is much neater than its gay counterpart.

CONTINUED, AFTER THE JUMP...

Title VII bans workplace discrimination on the basis of sex, but it was the EEOC's official interpretation of the law that ensured that both quid pro quo ("If you don't have sex with me, you're fired") and hostile environment (creating an intolerable sex-based atmosphere at work that is discriminatory against the opposite sex) harassment were unlawful. Both forms of harassment would not occur but for the victim's sex -- a heterosexual male boss demands sex from a female employee, not her male counterpart; a misogynist makes comments about sexual conquests of women to harass a woman, not a man.

ScThen, it was the Supreme Court that affirmed the EEOC's position (Meritor Savings Bank v. Vinson) and said that Title VII also bans discrimination based on gender nonconformity (Hopkins v. PriceWaterhouse) and harassment between members of the same sex (Oncale v. Sundowner). It was also the Court that nailed down the precise standard for hostile environment harassment claims: the harassment must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive and also is subjectively perceived by the alleged victim to be abusive (Harris v. Forklift Systems). Both the EEOC and the Supreme Court, then, played an essential role in developing Title VII into the success that it is today.

Congress did not have gender identity or sexual orientation on its mind when it inserted "sex" into the Civil Rights Act, but the step from "on the basis of sex" to gender identity and transgender discrimination is tiny and logical. Women are often discriminated against in the workplace because they are women, i.e., not men: heterosexual bosses ask women for sexual favors in exchange for promotions because the victims are women, not men; male coworkers harass their female peers by objectifying women because women, not men, are sexual objects. 

Transgender persons experience the same exact type of discrimination "because of [their] sex." Though definitions vary, a transgender person is one whose gender identity -- the self-identification as a woman or a man -- does not match the person's biologically assigned sex -- male or female. So, discrimination against a transgender person as a transgender person has to be on the basis of sex, the very identifying trait that characterizes a person as transgender. So, a transgender person who is fired for wanting to transition from male to female, i.e., to change his or her sex, is discriminated against because of that sex.

As the EEOC stated in its decision: "When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person."

Gays usually face employment discrimination in two ways: because of gender nonconformity and because of their sexual orientation. As you might already be able to conclude, discrimination because of gender nonconformity is banned under Title VII. A gay man cannot be fired, or denied promotion, or otherwise burdened in the workplace specifically and only because he lisps, speaks in a lilting or feminine tone, has a bubbly personality, does not like to play softball or drink beer with his co-workers, or acts according to any other stereotype of an effeminate man.

This should make sense: any discrimination is based on the employer's expectation of how a man should act and, when the employee does not act in that way and is hurt because of it, he is being discriminated against because he is a gender nonconforming man. If a woman acted that way, no one would bat an eyelash. That is discrimination on the basis of sex and, therefore, prohibited by Title VII. Notably, an employer can take action against him if there are legitimate failings not related to the employee's gender nonconformity.

Discrimination on the basis of sexual orientation differs in that the discrimination is triggered because the employee is gay, not straight, as opposed to female, not male. If the employee comes out as gay, brings a same-sex partner to a work function, or speaks at a gay rights rally as an out gay person and is fired for any one of those reasons, he is burdened because of his orientation, not his sex or gender. That is, both gay men and lesbians would be treated in the same discriminatory way.

But, as a minority of federal courts have said, sexual orientation discrimination is a form of sex discrimination. Consider the arguments made during the first generation of gay marriage cases: Refusals to grant marriages licenses to a gay male couple is sex discrimination because if one of the partners was a woman, they could get married. Similarly, if an employee is fired or not promoted because he brought his boyfriend to a work celebration, he is being discriminated against because he is a man bringing his date rather than a woman bringing the same date. Or, if a woman comes out as a lover of women and fired because of it, she is pink-slipped where a man who loves women would not be. That is discrimination on the basis of sex. However, this line of reasoning, though not impotent, has never gained traction in a majority of the federal courts.

Title VII's ban on sex discrimination was never meant to be especially broad: the discrimination has to be rather obvious or pretty severe and pervasive. But, the law has been expanded from its original narrow meaning by the EEOC and even a conservative federal judiciary, and therefore, the argument that Title VII was never meant to encompass antigay workplace discrimination is useless. The story is still not that simple. Expanding any statute beyond its original meaning should always give us pause, but even if it does not, sex, gender, and sexual orientation are different anthropological concepts that may overlap, but are not identical. Harassment and discrimination on any of those bases sometimes take on different language, means, and implications, and it is not so clear that a single law can encompass them all. We may need an ENDA after all.

What do you think? Now that Title VII covers transgender discrimination, should it also cover discrimination on the basis of sexual orientation?

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. I would rather have title VII be seen to protect us and have a redundant ENDA; belt and suspenders. I'm not so sure about title VII based on the language and who knows when we will get and ENDA? But how can anyone be resentful over the advance for transgenders? Isn't it purely a good thing? I really don't understand that.

    Posted by: NullNaught | Apr 25, 2012 3:14:18 PM


  2. Once the GOP figures out Title VII may protect Transgender people, I'm sure they will find a way to change the law. As for it protecting gays and lesbians, I'm not optimistic they will expand the protections. Hopefully I am wrong on both counts.

    Posted by: KT | Apr 25, 2012 3:18:45 PM


  3. Look everybody! Dharun Ravi's biggest apologist is still posting here! Hey Ari, how about another post equating Tyler Clementi's death with Ravi's conviction? You may have missed offending some people on your first attempt.

    Posted by: Dave | Apr 25, 2012 3:19:00 PM


  4. @dave: with all due respect, dave, i think you should go back and read the ravi verdict column. in no way did i equate tylers death with mr. raves conviction, and any suggestion otherwise is libel.

    Posted by: Ari Ezra Waldman | Apr 25, 2012 3:24:44 PM


  5. There are, roughly speaking, two ways to read Title VII's ban on sex discrimination (and two analogous ways to read constitutional prohibitions on sex discrimination, too.) The first, narrower way understand it to be concerned exclusively with putting men and women on an equal footing, in which "sex discrimination" happens when you favor men as a class over women as a class, or vice versa. This would mean that if you discriminate against both men and women who don't gender conform, you don't violate Title VII. (Similarly, defenders of same-sex marriage bans insist that both men and women are only permitted to marry someone of the opposite sex.)

    The second, broader way to read sex discrimination prohibitions is to read them as insisting that a person's sex not be a relevant consideration. The point of this would be ensuring not only that men and women have access to the same job opportunities, but also to protect them from being mistreated based on stereotyped conceptions of how men or women ought to behave.

    The EEOC's reading of Title VII is just the latest development in a gradual move toward reading Title VII's ban on sex discrimination in the second way rather than the first. But once we have done so, it mystifies me how sexual orientation discrimination could NOT be included. Discriminating against a gay or bisexual person on the basis of his/her same-sex attraction necessarily makes the person's sex relevant and definitely constitutes an attempt to confine people to appropriate gendered behavior (men only having relationships with women, and women only having relationships with men.) The key analytical step, again, is in moving from the first conception of sex discrimination to the second. Once that has happened, anti-trans discrimination and anti-gay discrimination must both be included.

    Posted by: Fodolodo | Apr 25, 2012 3:47:06 PM


  6. I am delighted with the EEOC decision. Several recent Appellate Courts, such as the one in Atlanta (11th Circuit, I believe) have made similar rulings.

    I just wish transgender individuals would quit sniping at our attention to marriage equality (as several did on the Melissa Harris-Perry show the other day). After all, marriage equality affects everyone.

    Posted by: Jay | Apr 25, 2012 3:50:21 PM


  7. We've tied ourselves up in legal knots with the notion of protected classes (implying that other classes are NOT protected). At some point (and I'm hoping for sooner rather than later), we need to stop trying to exhaustively enumerate all of the irrational factors that affect housing, employment and public accommodation decisions and require that decision-makers be able to justify their choices in terms of the inherent requirements of the situation.

    Posted by: Rich | Apr 25, 2012 3:55:23 PM


  8. Oh, this is wonderful news.
    Thank you, Ari.
    I'm not a lawyer, but even I understand that justice and law have nothing, not even one single letter in common. I don't see how discrimination against gays and lesbians can not be covered as the discrimination is clearly based on non-stereotypical behavior for the relevant sex. But, there it is - law and justice are two totally separate and mutually exclusive concepts.

    Posted by: enough already | Apr 25, 2012 4:31:57 PM


  9. @Ari:

    It's "Ravi's" not "raves". Anyway, I took your suggestion to heart. Here's a stroll down memory lane. Your words:

    "But, this verdict gives me great pause, and not only because it means one life is lost and another is ruined."

    That's your statement. It is odious and vile and a lie. Clementi is dead. His life is over. He will never see another sunrise nor will he ever again feel a cool breeze on his face. Ravi is 22 and will be out of prison when he is 24 or 25. Although his earnings may be impaired in the short or intermediate term, his life is not "ruined." The fate of the 2 should never be discussed in the same sentence. Ever. Shame on you.

    You know as much about libel law as you do about how legal rules and norms are created. In that regard, I am still waiting for you to explain your fascinating assertion that the Ravi verdict "imposes new obligations on universities." You seem to be eager to move on to other subjects, but maybe you could circle back to the case of the poor "ruined" Dharun Ravi and enlighten us all on that whopper.

    Posted by: Dave | Apr 25, 2012 4:51:56 PM


  10. Ari, While Dave goes too far, you didn't go far enough on the Ravi piece. Nor did you acknowledge the fact the invasion of privacy (of which Ravi was clearly guilty and which was not enacted as a "response" to any particular crime - it's no "Meghan's Law") carries 3 to 5 years in NJ, obstruction of justice and witness tampering (he is also clearly guilty of these) carry more time.

    Even if the hate crimes law were not applied, Ravi would be on the way to jail. That pretty much ends your "ruin a life" argument applied to letting Ravi off with community service.

    As for Emily Bazelon, she repeats the meme that Tyler was not "outed" by Ravi because Tyler was out to his parents. Do I need to tell you the difference between coming out to your parents and to your whole dorm the second week of freshman year? I thought not.

    Finally, I say I am a Rutgers alum and had a vaguely similar, though certainly less dramatic, experience to Tyler's while at Rutgers (back in the mists of time - 1985). My RA told me then "Well, you know, you'll just have to get used to that." I'd have to expect invasion of privacy and ridicule because I am gay.

    I don't know about you, but you-have-to-expect/she-wanted-it/ etc. are excuses that ought to consigned to the dustbin of history.

    Posted by: Chris Gable | Apr 25, 2012 5:11:55 PM


  11. "Discrimination on the basis of sexual orientation differs in that the discrimination is triggered because the employee is gay, not straight, as opposed to female, not male. "

    No, that's not true.

    You don't need to even use the word or concept "gay" in order to out yourself. All you have to do is say anything in casual conversation like (please don't critique my horrible script-writing skills):

    (a man): "Did you see the game? Some hot men's butts on that visiting team!"
    or
    (a woman): "I'm still looking for someone, but only men keep hitting on me, and that's so not what I want".

    If you merely replace "men" with "women" , in other words ONLY change the sex, then nobody has a problem. That's a clear indication of discrimination on the basis of sex, and sex alone.

    There can be no sexual orientation discrimination without also sex discrimination, because sexual orientation is not essential to describing attraction. It's a shortcut we use to classify people largely due to the discrimination we've faced, but in an objective sense, it's entirely unnecessary as it adds zero value to the words we already have. We have "man lovers" and "woman lovers" and "man and woman lovers". But you never need to use the words gay, lesbian, or bi, to describe them completely. So that can't really be the true basis for discrimination. It must be sex.

    The reason this hasn't caught on in the courts is homophobia, pure and simple. Judges come from the same population that bigots do. Courts know that if they say sexual orientation discrimination is sex discrimination, then all the barriers on LGB people come tumbling down pretty quickly. But if they force us to create a whole new category "sexual orientation" then we have to do the work piece by piece by piece.

    Saying that anti-trans or anti-LGB discrimination is sex discrimination is not "expanding" anything, any more than letting male or female couples marry is "redefining" marriage. Title VII doesn't say "except for transgender" or "except for attraction". I take Title VII at its word. It clearly covers sexual orientation.

    Posted by: Randy | Apr 25, 2012 11:04:12 PM


  12. Title VII tramples private property rights and freedom of association, by extension freedom of speech.

    Just because a law does something you would like to see happen in society, doesn't mean that the law is a good law or a law which respects our individual liberties.

    I respect an employer's right to hire exactly who he wants to hire.

    Posted by: David Hearn | Apr 27, 2012 3:28:30 PM


  13. @d.hearn: I suppose you think we should roll back all protections for workers based on "the freedom to contract," huh? I suppose dialing everything back to the bad ole days of the late 19th century makes sense tho, eh, as income equality is already back to that era, right?

    Posted by: Just_a_guy | Apr 29, 2012 10:55:41 PM


  14. @d.hearn: I suppose you think we should roll back all protections for workers based on "the freedom to contract," huh? I suppose dialing everything back to the bad ole days of the late 19th century makes sense tho, eh, as income equality is already back to that era, right?

    Posted by: Just_a_guy | Apr 29, 2012 10:55:44 PM


  15. That's kool but first u have to get the job. So who's there to help u get the job how do a transgender person get in the door. They can say there not hiring as they have said to me but a friend of mines go in and they tell him that they are hiring . How do u get around that?

    Posted by: Jackie | Apr 30, 2012 1:48:06 PM


  16. That's kool but first u have to get the job. So who's there to help u get the job how do a transgender person get in the door. They can say there not hiring as they have said to me but a friend of mines go in and they tell him that they are hiring . How do u get around that?

    Posted by: Jackie | Apr 30, 2012 1:48:07 PM


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  19. Hey Ari, I'm a federal law enforcement officer, who thinks he was discriminated against based on my sexual orientation. Would you be willing to visit with me or my attorney (who is knowledgeable about employment law, but who knows little about LGBT issues) regarding your thoughts on whether there might be an opportunity to pursue an EEO case based on discrimination based on sexual orientation?

    Posted by: Steve | Mar 23, 2013 1:10:43 AM


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