Sex Discrimination Claims Under Title VII and the Equal Protection Clause: The Eleventh Circuit Bridges the Gap
In December 2011, the U.S. Court of Appeals for the Eleventh Circuit ruled in Glenn v. Brumby that the Fourteenth Amendment of the federal Constitution protects transgender government employees from discrimination on the basis of their transgender identity. Courts have long recognized that the Fourteenth Amendment prohibits discrimination against individuals because of their gender, but only recently have courts begun to acknowledge that the term “gender” encompasses transgender identity.
Most gender discrimination cases in the workplace arise under Title VII of the Civil Rights Act of 1964 (“Title VII”) because Title VII is enforceable against a vast majority of employers. In contrast, the Fourteenth Amendment’s Equal Protection Clause protects only against discrimination by governments.
Glenn is significant in large part because the defendant employer was a government agency, allowing the plaintiff to seek recourse via Title VII or the Fourteenth Amendment. Although the plaintiff chose to pursue only a remedy for the Fourteenth Amendment violation, the Eleventh Circuit still drew upon U.S. Supreme Court cases interpreting Title VII to reach its conclusion in favor of the plaintiff.
Thus, although Glenn itself involved a claim arising under the Equal Protection Clause of the federal Constitution, its greatest effect will likely be on subsequent claims arising under Title VII.
In this column, I will provide a summary of the facts and the court’s reasoning in Glenn; highlight the key differences between claims under Title VII and those arising directly under the Constitution itself; and discuss the significance of the Glenn decision and its potential role in subsequent claims arising under Title VII.
The Facts of Glenn v. Brumby
The story behind the Glenn case goes as follows: Vandiver Elizabeth Glenn began working as an editor for the Georgia General Assembly’s Office of Legislative Counsel (“Georgia OLC”) in 2005. She had been diagnosed with Gender Identity Disorder earlier that year and was living as a woman outside the workplace. In 2005, when the Georgia OLC hired Glenn, she still presented herself as male at work. In 2006, however, she informed her supervisor that she intended to transition from male to female. When Sewell Brumby, the head of the office in which Glenn worked, confirmed that Glenn indeed intended to undergo a gender transition, he fired her.
Glenn then filed suit in federal district court alleging that Brumby had discriminated against her on the basis of sex, in violation of the Fourteenth Amendment of the U.S. Constitution. The district court granted Glenn’s motion for summary judgment, finding that no reasonable juror could conclude from the facts that discrimination had not occurred. However, Brumby appealed the decision, and the Eleventh Circuit agreed to hear the appeal.
There were two issues before the Eleventh Circuit. The first was whether discriminating against someone on the basis of his or her gender non-conformity constitutes discrimination on the basis of sex. The second was whether Glenn’s firing violated the federal Constitution’s Equal Protection Clause.
The Supreme Court’s Decision in Price Waterhouse: Sex Stereotyping as a Form of Discrimination
As to the first issue, Glenn’s claim (and the Eleventh Circuit’s ultimate holding) relied on a theory of sex discrimination that the U.S. Supreme Court had first clearly articulated in 1989, in Price Waterhouse v. Hopkins in the context of a Title VII claim. In that case, the Court held that an employer may not discriminate against an individual for his or her failure to conform to socially-prescribed gender roles. To do so, the Court stated, is discrimination on the basis of sex stereotyping and thus impermissible discrimination on the basis of sex.
Applying the “sex-stereotyping” theory of Price Waterhouse to Glenn’s circumstances, the Eleventh Circuit concluded that “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.” Moreover, the court found that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Thus, the court concluded, discrimination on the basis of transgender identity is discrimination on the basis of sex stereotyping, in violation of Title VII.
Because Glenn had alleged a violation of the Equal Protection Clause of the federal Constitution, rather than a violation of Title VII, the court went on to decide whether it could reach the same conclusion under an Equal Protection analysis.
Background: The Three Levels of Scrutiny That May Be Applied Under the Equal Protection Clause
The case law establishes that a plaintiff alleging discrimination in violation of the Constitution’s Equal Protection Clause must show that the employer acted with discriminatory intent. Yet, even if intent is proven, the government may still avoid liability if it can demonstrate that it had adequate justification for the discrimination.
Courts apply different levels of scrutiny in such cases, depending on the type of discrimination alleged. Claims alleging discrimination based on race, ethnicity, or national origin, as well as claimed burdens on so-called “fundamental rights” (such as the right to vote, or the right to marry), are subject to “strict scrutiny.” This is the highest level of review. To survive strict scrutiny, the government must show that its discriminatory policy is necessary to achieve a compelling interest, and that the policy is the least restrictive means of achieving that interest.
In turn, claims alleging discrimination based on gender are subject to “intermediate scrutiny,” which requires that the government show that its discriminatory policy furthers an important government interest, in a way that is substantially related to that interest. In practice, to satisfy intermediate scrutiny, the government or its agent must show an “exceedingly persuasive justification” for the discriminatory practice.
Finally, the lowest level of judicial scrutiny that may be applied to a discrimination claim is called the “rational basis test.” To pass the test, the plaintiff challenging the government’s practice must show that the discrimination is not even reasonably related to a legitimate government interest. This is essentially a catch-all category; it applies to any type of classification that is not explicitly subject to one of the other two levels of “heightened” scrutiny.
Why the Federal Appellate Court in Glenn Chose Intermediate Scrutiny As the Proper Standard of Review
In Glenn, the Eleventh Circuit held that intermediate scrutiny was the appropriate test, based on its interpretation of gender discrimination as being inclusive of discrimination on the basis of transgender identity.
In addition, the court found that Brumby’s decision to fire Glenn was based on his view that her “intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.”
The court found that these reasons fell short of being “exceedingly persuasive,” and thus did not meet the applicable standard under the intermediate scrutiny test. Thus, the court held that the discriminatory decision violated Glenn’s right to the equal protection of the law, as set forth in the federal Constitution’s Equal Protection Clause.
Distinguishing an Equal Protection Claim From a Title VII Claim
There is no question that the decision in Glenn marks a significant victory for all transgender employees who have been, or currently are being, subjected to discrimination in the workplace. Yet the decision’s constitutional basis could potentially limit its applicability. The Equal Protection Clause guarantees only against discriminatory action by governments and their departments and agencies. However, the vast majority of American workers work for private employers, whose employment practices are subject not to constitutional constraints, but instead to Title VII, the main federal anti-discrimination statute. Whether Title VII specifically proscribes discrimination on the basis of transgender identity is not yet settled.
Generally speaking, Title VII applies to all employers with fifteen or more employees. In the statute, Congress identified five characteristics that employers cannot consider in making employment decisions: race, color, religion, sex, and national origin. The federal Constitution’s Equal Protection Clause, on the other hand, theoretically applies to discrimination on the basis of any characteristic.
Title VII contains an exception to the outright prohibition on discrimination, for instances where the employee’s characteristic is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Courts have interpreted this “bona fide occupational qualification” (“BFOQ”) exception narrowly, however. For example, the fact that airline passengers may prefer female flight attendants to male ones does not render being female a BFOQ for flight attendant positions for the purposes of Title VII.
The Equal Protection Clause, in turn, requires that the discrimination at issue must be related to a governmental interest to a degree prescribed by law. The appropriate degree, as described above, depends on the particular characteristic at issue. When gender is at issue, the appropriate level of scrutiny for a court to apply is intermediate scrutiny.
To prove a case alleging sex discrimination in violation of Title VII, a plaintiff must show that despite being qualified, he or she suffered an adverse employment action (e.g., being demoted or fired, or being passed over for promotion or hiring) when other similarly situated employees did not, and that the difference in treatment was attributable to sex or to sex-stereotyping. Once the plaintiff has made that showing, then—unless the defendant can show a non-pretextual, legitimate, nondiscriminatory reason for the employment decision—the plaintiff will prevail.
The as-yet-unresolved question now is whether firing someone because she is transgender constitutes a firing “on the basis of sex” within the language of Title VII. Perhaps surprisingly, courts have answered this question in conflicting ways. A few federal courts of appeals have held that transgender individuals are not within a Title VII protected class, while several others have held the opposite.
Notably, the Eleventh Circuit’s heavy reliance on Title VII decisions in deciding the Equal Protection issue in Glenn may tend to tip the balance in favor of courts’ applying an inclusive definition of gender (that is, one that would encompass transgender status) for both Equal Protection and Title VII cases.
The Implications of Glenn
The Eleventh Circuit’s decision in Glenn stands for two propositions: (1) Sex discrimination under Title VII is equivalent to sex discrimination under the Equal Protection Clause; and (2) Sex discrimination includes discrimination against transgender individuals. By drawing the connection between Title VII and the Equal Protection Clause in this regard, the court fortified Title VII’s protections against employment discrimination.
Because, as noted above, Title VII applies to far more employers than does the Equal Protection Clause, the significance of Glenn’s applicability to either type of claim cannot be understated. While federal circuit courts still have not reached a consensus as to whether Title VII protects transgender employees, the Eleventh Circuit’s decision in Glenn is a notable victory for proponents of the equal treatment of all individuals in the workplace.