Yesterday, a federal appellate court held, in Hively v. Ivy Tech Community College, that Title VII of the Civil Rights Act, which prohibits discrimination in the workplace “on the basis of sex”, also prohibits an employer from firing someone because he or she is gay. This is, as they say, a big f*in deal. Although the argument and decision are pretty straightforward, let’s break it down and discuss how we got here.
It has been a refrain among LGBT lawyers and advocates that, in states without their own anti-discrimination statute that included sexual orientation, an employee could be fired simply for being gay. After Obergefell, for example, it was true in some states that a man could marry a man in the morning and get fired in the afternoon. This was the case because federal nondiscrimination law did not explicitly cover sexual orientation.
Then the Equal Employment Opportunity Commission, an executive agency that hears employment discrimination cases, concluded that, actually, Title VII’s sex discrimination provision does cover sexual orientation discrimination. Think of it this way: Firing a man because he is married to a man is discrimination on the basis of sex because you wouldn’t fire a women for being married to a man. Only a man can be fired for being married to man, and only a woman could be fired for being married to a woman. Therefore, you are treating the sexes differently. That’s discrimination “on the basis of sex.”
But the ruling of an executive agency is not the law of the land. And there had been contrary court decisions from federal district and appellate courts affirming that Title VII was written to protect women in the workplace, not gays.
A lot has changed since Title VII was written and passed by Congress in 1964. In particular, the legal status of gay persons has changed. And anti-discrimination law itself is broader. In a case called Price Waterhouse v. Hopkins, the Supreme Court held that Title VII’s ban on sex discrimination can be triggered when an employee is discriminated against for failing to conform to gender stereotypes.
In that case, a female employee alleged that she was denied a promotion because the partners at Price Waterhouse thought her “too masculine.” They made fun of her appearance; suggested she wear lipstick, dresses, and high heels; and suggested that she was too “macho” and lacked “charm.” Notice how this kind of discrimination is not the classic form of sex discrimination. Ms. Hopkins was not denied a promotion because she is a woman; she was denied a promotion because she didn’t act like a stereotypical woman.
Hively, a lesbian, is also not a stereotypical woman. In fact, according to the majority opinion, she is the “ultimate case of failure to conform to the female stereotype” because she married a woman. Suddenly, discriminating against lesbians for being too masculine sounds a lot like sex discrimination.
Another Supreme Court case, Oncale v. Sundowner Offshore Services, had a hand in this. This is a complicated case, one that we’ll turn back to in time, and one that isn’t entirely on our side. But for now, note that Oncale was about male-on-male sexual harassment taking place on what may be among the most “masculine” workplaces out there short of a rugby team locker room and a police department: an oil platform. Supervisors and crew members taunted, threatened, assaulted, and humiliated Oncale, suggesting he was gay. One of them even threatened Oncale with rape. The company didn’t do anything about it.
The case made it all the way up to the Supreme Court because a lower court had found that men could not sexually harass men under Title VII. That, Justice Scalia said, was “argle bargle,” to use one of his choice phrases from another case. Giving us his best textualism, Scalia said that there is nothing in the statute that said that a man cannot discriminate against another man. The prohibition protects both men and women and even though the drafters of Title VII may not have thought at all about male-on-male harassment, they wrote a statute that said nothing about the sexes of the parties involved, only the nature of the discrimination and harassment.
Put these two cases together and sexual orientation discrimination is sex discrimination. A man harassing another man for allegedly loving men is actionable under Title VII per Oncale. A man firing a man because he isn’t masculine enough is actionable under Hopkins. In a way, Oncale and Hopkins adequately describe what being gay in the workplace is like. Many of us do not conform to gender stereotypes with respect to our behavior, mannerisms, attitude, and dress. And we all are attracted to persons of the same sex. Therefore, protecting sexual orientation discrimination under sex discrimination makes sense.
In the next column, we will discuss what happens next. Stay tuned.