Where are we now and where are we headed?
An estimated 11.3 million U.S. adults identify as LGBTQ according to the Williams Institute at the UCLA law school*. In 2015, the United States Supreme Court, in a divided 5-4 opinion in Obergefell v. Hodges, legalized same-sex marriage across the United States. Many thought that the fight for LGBTQ+ rights was finally over and won. 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?
To an extent, the Supreme Court addressed sex discrimination based on sexual orientation in a landmark case involving same-sex sexual harassment.* In Oncale, the Plaintiff, a male, was working for respondent Sundowner Offshore Services, Inc., on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roundabout on an eight-man crew. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by others in the presence of the rest of the crew. Two members of the crew also sexually assaulted Oncale, and one of the men threatened him with rape. 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?
It is uncertain how the Court will rule in determining whether it will extend Title VII protection to include gender identity or sexual orientation. Rulings may change under this year’s much differently oriented Supreme Court. Although conservative Justices like Scalia and Thomas both agreed that same-sex sexual harassment was actionable in Oncale in 1998, Justice Thomas has not been a strong advocate for LBGTQ+ rights, as a strong dissenter in LBGTQ+ rights cases, such as Obergefell v. Hodges , (stating that same-sex couples under the most plausible definition of “liberty,” “ have not been “imprisoned or physically restrained by the States for participating in same-sex relationships”). 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.
The WLAD
Washington State has a much broader affirmative protections based on gender and sexual orientation. The Washington Law Against Discrimination RCW 49.60, et seq., was amended in 2006, and unlike Title VII, its federal counterpart, the statute specifically enumerates “sexual orientation” as a protected class, and affirmatively protects against discrimination based on sexual orientation, providing Washington citizens further protections from discrimination. For example, in Loeffelholz v. University of Washington, 175 Wn.2d 264, 285 P.3d 854 (2012), the Washington Supreme Court recognized a claim of unlawful harassment arising from anti-gay comments. The supervisor asked the lesbian employee not to “flaunt” her sexual orientation around him. He told others he disliked her because she was gay and overweight and that he had tried to fire her. He made threatening comments toward her. 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.
Conclusion
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.
* Citations: https://williamsinstitute.law.ucla.edu/visualization/lgbt-stats/?topic=LGBT#density 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). https://www.latimes.com/world-nation/story/2019-10-08/justices-hear-oral-arguments-about-whether-existing-sex-discrimination-laws-protects-lgbtq-workers http://sfbaytimes.com/lgbtiq-case-will-reach-brett-kavanaugh-supreme-court-first/ https://www.vanityfair.com/news/2018/06/donald-trump-justice-anthony-kennedy-retirement https://www.nationalreview.com/bench-memos/judge-kavanaugh-on-justice-scalia-a-hero-and-a-role-model/
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.