Regardless of one's position on gay rights, from a legal perspective, getting fired for being gay is just one of many forms of sexual orientation discrimination. Failure to promote, unequal pay, hostile work environment, and harassment are commonplace. Even when a lesbian or gay employee works for a company where these issues are not present, that employee may not be able to obtain benefits for his or her domestic partner or spouse.
In an effort to address and remedy many of these issues, for the past 20 years Congress has attempted to enact the Employment Non-Discrimination Act (ENDA). While Congress has been unsuccessful in filling the void, a number of states have enacted laws that prohibit discrimination based on gender identity and/or sexual orientation. But if the same-sex couple does not live in one of these states, the pair is out of luck…or maybe not. This article explains how existing federal law—specifically Title VII—may fill that void.
Victory May Be PyrrhicOn Oct. 6, 2014, the Supreme Court declined to hear appeals from several circuit courts declaring that state bans on same-sex marriage were unconstitutional. Although the Supreme Court said nothing beyond "petition…denied," people around the country got the message: Gay marriage is here to stay. Seventeen states subsequently joined the growing number of states recognizing gay marriage.
The ink was barely dry on the new marriage licenses, however, when the Sixth Circuit became the first—and only—circuit to uphold state bans on gay marriage.1 At most, this decision is likely a temporary detour for gay couples and not a dead end. In fact, the Sixth Circuit acknowledged, "[T]he question is not whether American law will allow gay couples to marry; it is when and how it will happen."2 Attorneys for the losing couples immediately petitioned the Supreme Court for review, which the court may now grant given the split in the circuits.
However, a victory for gay couples in the Supreme Court regarding the right to marry will not address their workplace rights. Simply put, employment anti-discrimination statutes, as courts currently interpret them, do not adequately protect employees married to someone of the same sex.
Current State of the LawTitle VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."3 Title VII omits sexual orientation from its list of protected characteristics, and courts have yet to interpret the statute to cover it. While the statute prohibits employers from retaliating against employees who report discrimination, many courts deny these claims when employees report sexual orientation discrimination.4
Twenty-two states have enacted statutes that prohibit employment discrimination on the basis of sexual orientation, and 18 states have enacted statutes that prohibit discrimination on the basis of gender identity (as of July 31, 2013). Those numbers should grow in light of current events, but the legislative process is slow moving. Sexual orientation discrimination still exists in many states, and, in the states that do attempt to prohibit it, the strength of the laws varies.
ENDA seeks to remedy discrimination against homosexual employees that Title VII does not reach. The latest incarnation of ENDA would "prohibit employment discrimination on the basis of sexual orientation or gender identity."5 However, ENDA, despite numerous attempts to do so over two decades, has never been enacted. Moreover, an important yet easily overlooked difference between ENDA and Title VII is that ENDA exempts religious institutions, while Title VII exempts religious institutions only to the extent that they may legally discriminate on the basis of religion but not race, sex, or national origin. For example, a Baptist college would not violate Title VII if it refused to hire a math teacher because she was Presbyterian and not Baptist. However, that same college may violate Title VII—but not ENDA— by refusing to hire a teacher because she is a lesbian if, as this article suggests, courts interpret Title VII to prohibit sexual orientation discrimination.6 Thus, properly interpreted, Title VII could be more effective than ENDA and most state laws.
Reinterpreting Title VIISex, unlike sexual orientation, is a protected class under Title VII. The Supreme Court in Price Waterhouse v. Hopkins7 interpreted Title VII's "because of sex" requirement and paved the way for gay employees to allege employment discrimination on the basis of gender.
In Hopkins, a female employee alleged that her employer withheld its consideration of her partnership bid because she did not conform to prevailing notions of womanliness. The Supreme Court held that stereotyped remarks were evidence of discrimination "because of sex" under Title VII. The court explained that the employer would be acting on the basis of gender if its belief that men should be aggressive but women should not be aggressive motivated its employment decisions.
After Hopkins, gay employees argued that employers who discriminate against employees for having same-sex relationships are engaging in sex stereotyping. However, courts have been hesitant to interpret Hopkins that broadly. In fact, most courts tend to follow the reasoning set forth in Vickers v. Fairfield Medical Center.8 The Vickers court held that plaintiffs must allege gender non-conforming mannerisms or appearance observable at work to state a claim for sex discrimination under Title VII that rests on gender stereotyping.
Vickers and its progeny force courts to examine whether an employee's behavior is a gay behavior—if such a thing exists—or a gender non-conforming behavior. Courts note that the line between the two is often blurred, which complicates the analysis. While most courts maintain that being homosexual will not make an otherwise valid sex-stereotyping claim invalid, these assurances are of little comfort to the countless employees whose Title VII claims failed after their employers fired them for being gay. This lack of legal recourse incentivizes gay employees to keep their identities hidden.
Although gays have always faced pressure to stay closeted for job security, these holdings no longer make legal sense. The idea that the law cannot be used to demean homosexual relationships permeates the four circuit court decisions striking down the gay marriage bans. Yet, most courts interpreting Title VII are doing just that. They analyze whether the plaintiff is “too gay” or “just not gay enough” for Title VII, an unseemly undertaking.
However, the argument that sexual orientation discrimination is sex discrimination is gaining traction. For example, in Terveer v. Billington,9 the defendant argued that the plaintiff failed to state a claim because he did not name a specific gender non-conforming mannerism in his complaint. This argument failed. The court swiftly denied the motion to dismiss, briefly mentioning Hopkins. The case is still pending.
The Equal Employment Opportunity Commission (EEOC) has been more aggressive. In Castello v. U.S. Postal Service,10 the lesbian employee's claim was based on her supervisor remarking, "Cece [Complainant] gets more pussy than the men in the building." Reversing the dismissal of the claim, the EEOC applied Hopkins and expressly recognized that homosexuality was gender non-conformity sufficient to support a claim. This interpretation of Hopkins is a promising development for gay spouses.
The EEOC's application of Hopkins is preferable to that of the courts that have followed Vickers because it eschews asking whether an employer's reaction was motivated by animosity for gays instead of gender non-conformity. Under the EEOC's interpretation, gay employees can enforce their federal rights without sacrificing their dignity.
Nevertheless, courts assert that the reach of Hopkins must be curtailed because Title VII's legislative history indicates that Congress did not contemplate that sexual orientation discrimination would be covered. Congress' silence regarding amending the statute to encompass sexual orientation discrimination has done little to buttress the courts' assertion.
The solution may rest in the concept of relational theory (sometimes referred to as "associational discrimination"). Relational theory, initially developed after the legal recognition of interracial marriage, provides that discriminating against an employee because he or she associates with a person of a different race is racial discrimination that violates Title VII. Relational theory found its origins in Holiday v. Belle's Restaurant,11 where a white employee alleged that her employer discriminated against her for having an interracial marriage. The Holiday court ruled in favor of the plaintiff because her complaint stated that, had she been black (instead of white) and married to a black man, her employer would not have treated her adversely. Therefore, the plaintiff sufficiently pleaded that the alleged discrimination was "because of race."
Relational theory should be applied to gay employees' sex discrimination claims. For example, the plaintiff-employee would allege that the employer discriminated against him because he is a male married to another male, and that, had the employee been a female married to a male, the employer would not have discriminated. Such allegations would thus meet Title VII's "because of sex" requirement.
A few courts have recognized relational theory in national origin cases of discrimination under Title VII12 but they have not been willing to expand its reach to sexual orientation claims. But relational theory, as applied to gay marriages, is ripe for reconsideration. The legal trajectory of interracial marriage in this country is very similar to that of gay marriage. In Loving v. Virginia,13 the Supreme Court held that a state ban on interracial marriage was illegal. By using the path it blazed in Loving and adopting use of relational theory in sexual orientation cases, the Supreme Court will have completed its journey to stamp out employment discrimination in all forms.
Journalists have spilled much ink over the gay marriage debate but have said little about its very real employment repercussions. Title VII can and should protect all people from workplace discrimination. Courts will have a hard time ignoring that sexual orientation discrimination is sex discrimination under Title VII, as the number of gay marriages rises and more discrimination claims land on their dockets.
1. In Citizens for Equal Protection v. Bruning, the U.S. Court of Appeals for the Eighth Circuit held that an amendment to the Nebraska Constitution only recognizing heterosexual marriage was constitutional under the U.S. Constitution. 455 F.3d 859 (8th Cir. 2006). However, the Eighth Circuit has not addressed gay marriage bans since U.S. v. Windsor, 133 S.Ct. 2675 (2013).
2. DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990, at *1 (6th Cir. Nov. 6, 2014).
3. 42 U.S.C. §2000e-2(a).
4. However, some courts recognize retaliation claims based on sexual orientation. See, e.g., Dawson v. Entek Intern., 630 F.3d 928 (9th Cir. 2011).
5. Employment Non-Discrimination Act of 2013, S.815, 113th Cong. (2013).
6. In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012), the Supreme Court endorsed the "ministerial exception," which is derived from the First Amendment's Religion Clauses and prevents the application of anti-discrimination statutes to the employment of ministers by religious organizations. In that case, a "called" teacher at a Lutheran school and church alleged that she was fired in violation of the Americans with Disabilities Act. The court held that the teacher was a minister because she held herself out as a minister, taught religion lessons, and had significant religious training. Hosanna-Tabor Evangelical Lutheran Church & Sch., 132 S. Ct. at 707-10. Therefore, the ministerial exception barred the teacher's claim. However, most teachers at religious schools do not qualify as "ministers," and, therefore, the ministerial exception is narrow. It may be possible for an employer to avoid Title VII obligations by arguing that hiring homosexuals would substantially burden its exercise of religion under the Religious Freedom Restoration Act (RFRA). See generally Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014) (holding that regulations requiring employers to provide female employees with no-cost access to contraception violate the RFRA when the employer is a closely held corporation). However, the strength of such a claim remains to be seen.
7. 490 U.S. 228 (1989).
8. 453 F.3d 757 (6th Cir. 2006).
9. No. CV 12-1290 (CKK), 2014 WL 1280301 (D.D.C. March 31, 2014).
10. E.E.O.C. Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011).
11. 409 F.Supp. 904 (W.D. Pa. 1976).
12. See, e.g., Morales v. NYS Dep't of Labor, 865 F.Supp.2d 220, 243 (N.D.N.Y. 2012), aff'd sub nom. Morales v. New York State Dept. of Labor, Div. of Employment Servs., 530 F. App'x 13 (2d Cir. 2013) (holding that a plaintiff of "non-Hispanic European descent" who advocated for and associated with Hispanics established a prima facie case of national origin discrimination under Title VII).
13. 388 U.S. 1 (1967).