Does Title VII Really Cover LGBT Discrimination?

With near-daily headlines about what federal protections LGBT employees actually have, it’s not surprising that a half-day workshop I recently attended during the national 32nd Annual Conference for the Society for Industrial and Organizational Psychology in Orlando, Florida, focused quite heavily on the topic.

The workshop was on legal issues in employment, and the battle over LGBT rights is certainly one of the most prominent of those issues. So, a considerable amount of time was given to LGBT employees, particularly in relation to the courts and the U.S. Equal Employment Opportunity Commission (EEOC).

There appears to be a battle between the two entities over a seemingly subtle, but actually very crucial, point – whether Title VII of the 1964 Civil Rights Act covers sexual stereotyping or simply sexual bias.

With legal precedent going as far back as 1989 (Price Waterhouse v. Hopkins), discrimination based on gender stereotypes has been determined unlawful in the workplace. In this specific case, Ann Hopkins sued her former employer, accounting firm Price Waterhouse, when she was denied a promotion, in part, because other partners at the firm felt she did not act or look like they felt a woman should.

After her promotion was postponed a year, she met with the top supervisor in her department, who advised her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry” to secure a partnership. When she was denied a second year, she resigned and filed suit against Price Waterhouse for violating her rights under Title VII. The U.S. Supreme Court ultimately found this constituted evidence of sexual discrimination, as in the “context of sex stereotyping”.

The ruling is significant because it established that gender stereotypes fall under the category of sexual discrimination.

Then in July 2015, the EEOC expanded that category to include sexual bias toward LGBT employees. In its groundbreaking decision, the EEOC concluded that employers who discriminate against LGBT workers are violating Title VII. In the past, courts have ruled that Title VII does not cover discrimination based on sexual orientation.

The 11th Circuit of the U.S. Court of Appeals disagreed, supporting in March a lower court’s ruling in a lawsuit against Georgia Regional Hospital that “sexual orientation and gender nonconformity” are not covered under Title VII. The plaintiff in that case sued the hospital under Title VII, alleging employment discrimination in her job as a security officer.

Also in March, the U.S. Court of Appeal’s 2nd Circuit let its voice be heard. Matthew Christiansen brought action against his employer under Title VII, alleging that he was subjected to various forms of workplace discrimination due to his failure to conform to gender stereotypes. Previously dismissed by the lower courts, the verdict was reversed by the 2nd Circuit based on the Price Waterhouse v. Hopkins Theory (sexual stereotyping).

Finally, the recently decided case, Hivley v. Tech Community College, in the 7th Circuit stands directly in opposition with the 11th Circuit decision cited above. The 7th Circuit court held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sexual discrimination for Title VII purposes.”

That landmark ruling from the 7th Circuit is the one to watch, says David Smith, president and CEO of EASI•Consult®. It is the ruling that will determine where other courts, like the 2nd and 11th, go next with their own precedents and – perhaps anticipating the issue will head to the U.S. Supreme Court – much was made of this issue in the recent Senate hearing on the nomination of Neil Gorsuch to fill Justice Antonin Scalia’s seat.

While future court actions could go either way, it may be wise for organizations to move forward with drafting inclusive policies and be proactive in promoting diversity.

David Smith, PhD, is the president and CEO of EASIConsult®. EASIConsult®, works with Fortune 500 companies, government   agencies, and mid-sized corporations to provide customized Talent Management solutions. EASIConsult’s®, specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASIConsult®, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

EASI·Consult® is the registered name for Expert Advocates in Selection International, LLC.
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