Where are we now and where are we headed?
However, LGBTQ+ folks continue to struggle and face many forms of discrimination; some form of which are outlawed, and some that are not. In one survey, 35% of LGBT-identified respondents who reported being “open” at work reported having been harassed in the workplace*. In another survey, LGBT respondents were asked specifically whether they heard derogatory comments about sexual orientation and gender identity in their workplaces*. In that survey, 58% of LGBT respondents said they had heard such comments. Id. In a large-scale survey of transgender individuals, 50% of respondents reported being harassed at work.* Also, 7% reported being physically assaulted at work because of their gender identity, and 6% reported being sexually assaulted at work. Id. 41% reported having been asked unwelcome questions about their transgender or surgical status, and 45% reported having been referred to by the wrong pronouns “repeatedly and on purpose” at work. Id.
In the employment context, this year will be an important year for the Supreme Court on these discrimination issues. On October 8, 2019, the U.S. Supreme Court heard oral arguments on three cases about whether it is illegal to discriminate and fire workers because of their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. The federal law prohibits discrimination based on sex. The question is, do protections against discrimination based on sex extend to protect against discrimination based on sexual orientation and/or gender identity? The statute does not specifically list “sexual orientation” or “gender identity” as protected classes. Congress added the word “sex” to Title VII of the Civil Rights Act of 1964 at the last minute on the floor of the House of Representatives.* Virtually no legislative history guides courts on interpreting the prohibition of sex discrimination.* In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court held that sexual harassment constitutes sex discrimination in violation of Title VII. Id.
How has the court addressed the issue?
Oncale’s complaints to supervisory personnel produced no remedial action. In fact, the company’s Safety Compliance Clerk told Oncale that the other crewmembers “picked [on] him all the time too,” and called him a name suggesting homosexuality. Oncale eventually quit—asking that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.” When asked at his deposition why he left Sundowner, Oncale stated: “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”
The Court held in a unanimous decision delivered by the late Justice Antonin Scalia, that it saw “no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.” As such the Court held, that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.
However, the court in Oncale did not go the extra mile to outright say that discrimination based on sexual orientation is by itself actionable under Title VII, only that same-sex sexual harassment is discrimination based on sex for purposes of the statute.
Where are we headed?
Further, with President Trump’s recent conservative appointees Justice Brett Kavanaugh, and Neil Gorsuch, it is difficult to guess where the arguments will land.
Justice Gorsuch, Justice Scalia’s replacement, could be the deciding vote in these cases. Gorsuch participated in past decisions on the U.S. Court of Appeals for the 10th Circuit which constrained rights related to sexual orientation and gender identity. As noted by the Williams Institute*:
- Druley v. Patton, 601 Fed. Appx. 632 (10th Cir. 2015) – Judge Gorsuch joined an unpublished opinion ruling against a transgender inmate’s constitutional claims seeking hormone treatment and re-assignment from an all-male facility.
- Kastl v. Maricopa County Community College District, 325 Fed. Appx. 492 (9th Cir. 2009) – Judge Gorsuch, sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that “restroom safety” was a non-discriminatory reason for the employer’s decision.
- Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) – Judge Gorsuch joined an opinion in favor of companies alleging that the Affordable Care Act’s contraception mandate violated their religious rights under the federal Religious Freedom Restoration Act (RFRA). Judge Gorsuch authored a concurrence to explain his expansive view of religious liberty claims under RFRA.
Justice Gorsuch may go either way in this case. During oral argument, Justice Gorsuch was reported to say that these cases were “really close” but mentioned that he had concerns of “massive social upheaval” and expressed that putting new meaning to an old law was concerning, and that was more appropriate as a legislative rather than a judicial function, which appeared to be the view of conservative Chief Justice John Roberts, and conservative Justice Samuel Alito.* On the other hand, Justice Gorsuch also said several times that he could accept the argument that firing a gay or transgender employee involved sex discrimination. When a lawyer defended an employer who allegedly fired a gay employee, Gorsuch said he did not see how sex played no role.
For Justice Brett Kavanaugh, it is the first significant gay rights case before the high court since he replaced the retired Justice Anthony M. Kennedy. Kavanaugh, viewed by many as more conservative than Kennedy, said little during the arguments, so his views remain unclear. Further, none of Justice Kavanaugh’s roughly 300 opinions as an appellate judge deals directly with LGBTQ+ issues.
At Kavanaugh’s confirmation hearing, Senator Cory Booker asked him whether it would be wrong to fire someone because they’re gay. Kavanaugh volunteered only, “In my workplace, I hire people because of their talents and abilities. All Americans.”* In response to questions from Senator Kamala Harris as to whether he believed Obergefell was correctly decided, Kavanaugh refused to answer, but declared that the Court had decided that “the days of discriminating against gay and lesbian Americans, or treating gay and lesbian Americans as inferior in dignity and worth, are over … . That’s a very important statement.” Id.
Gorsuch and Kavanaugh could also feel that they need to preserve the legacy of Justice Kennedy. Though a moderate conservative, Kennedy wrote all of the court’s opinions upholding the rights of gays and lesbians, including the above-referenced 2015 decision upholding the right to marry for same-sex couples. It has been suggested that Trump nominated Justice Gorsuch, (who clerked for Kennedy), to demonstrate to Kennedy that his legacy could be preserved.* Brett Kavanaugh, Kennedy’s replacement, also clerked for Kennedy and could feel a similar obligation. However, given the conservative theory and alleged textual adherence in law, is doubtful that either Gorsuch or Kavanaugh would create “new constitutional rights that are not in the text of the Constitution.”*
In short, the future of LGBTQ+ folks, and their right to be free from adverse treatment in the workplace remains uncertain, as the high court considers these three monumental cases.
The 9th Circuit
The federal 9th Circuit Court of Appeals, the applicable appeals court for federal cases in Washington, has taken a broader view that discrimination based on sexual orientation is illegal under Title VII and has for almost two decades. For example, the 9th Circuit has held that gender stereotyping of a male employee, about his sexuality and masculinity, constitutes actionable harassment and therefore sex discrimination under Title VII. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874-75 (9th Cir.2001). When a worker’s expression of sexual identity does not align with sex-role stereotypes held by other workers, harassment on that basis is illegal, regardless of perceived sexual orientation. Id. Verbal abuse of this nature is “closely related to gender,” occurred because of sex, and therefore constitutes actionable harassment under Title VII. Id.; see also Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061.1069 (9th Cir. 2002).
However, some courts have limited the application of the WLAD. For example, in Davis v. Fred’s Appliance, Inc., 171 Wn. App. 348 (Div. III, 2012), the court found that three references to an employee by the name of the television character “Big Gay Al” within one week were insufficient to alter the terms and conditions of employment. Further, the court found that Davis was heterosexual, not a member of the protected class, and therefore could not make out a prima facie case. Davis appears to be at odds with the text of the WLAD and similar cases under the WLAD and within the 9th Circuit but provides limits to the application of sexual orientation as the basis for a claim under the WLAD in Washington.
In consideration of the broad right to be free from sexual orientation-based harassment recognized under the WLAD, Washington state law, rather than federal law under Title VII, appears to be a better avenue to pursue in anti-LGBTQ+ cases. But changes in the understanding of sex discrimination under Title VII under the current Supreme Court will further define the extent to these protections. If not, it may be up to Congress to change the law and create better protections within the workplace.
If you or someone you know is the victim of unwanted and egregious discrimination based on sexual harassment or gender identity in the workplace, contact a lawyer that can help you to formalize a plan to combat this illegal discrimination.
Colin McHugh is an experienced plaintiff-side employment attorney and has represented individuals in Washington state, federal, and administrative courts in matters including but not limited to sexual orientation discrimination, sexual harassment, and other WLAD and Title VII matters. For more information, go to his bio here.
Christie Mallory & Brad Sears, Documented Evidence of Employment Discrimination and Its Effects on LGBT People, The Williams Institute (2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/SearsMallory-Discrimination-July-20111.pdf (citing finding from the 2008 General Social Survey, a national probability survey representative of the U.S. population.).
Human Rights Campaign, Degrees of Equality Report: A National Study Examining Workplace Climate for LGBT Employees (2009), available at http://hrc-assets.s3-website-us-east1.amazonaws.com//files/assets/resources/DegreesOfEquality_2009.pdf.
Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011), available at http://endtransdiscrimination.org/report.html.
110 Cong.Rec. 2,577-2,584 (1964).
Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1991).
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,80 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998).
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