Pennsylvania may have gone mysteriously red in the dark of election night, but a federal judge in that state has just ruled that Title VII prohibits sexual orientation discrimination. This court joins a small but growing number of federal district courts to reach this conclusion, queuing up perhaps yet another appeal that pushes this issue closer to the Supreme Court.
The tides turned with an EEOC ruling in 2015, in which the agency concluded that alleged discrimination against a gay man—because he was gay—constituted a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, a federal law banning employment discrimination on the basis of certain protected characteristics such as sex, race, ethnicity, and religion. The EEOC sparked a second look at this question, decades after several courts had dismissively, and with little reasoning, concluded that the law’s prohibition of sex discrimination is not broad enough to encompass sexual orientation discrimination. The new case from a federal district court in Pennsylvania, EEOC v. Scott Medical Health Center, builds on a more recent trend, in which courts (and the EEOC) draw on more contemporary thinking about the nature of sexual orientation discrimination and its relationship to gender.
The Complaint Against Scott Medical Health Center
Dale Baxley, a gay man, worked for Scott Medical Health Center as a telemarketer. Baxley was managed by Robert McClendon, who, Baxley alleges, subjected him to a continuing course of harassment dating to the beginning of his employment in 2013. According to the complaint (this case has not gone to trial and thus the facts alleged are treated as true for purposes of the defendant’s motion to dismiss), McClendon routinely called Baxley “fag, faggo, fucking faggot, and queer” and tied those epithets directly to work, complaining, for example, that “fucking queer can’t do your job.” Upon learning that Baxley had a romantic partner, McClendon expressed deep interest, noting that he had “always wondered how you fags have sex” and demanding to know “who’s the butch and who is the bitch?”
This may seem like obvious fodder for a complaint to the EEOC, but this case actually arose from complaints by five women who also worked for Scott Medical. They alleged that McClendon (when he wasn’t insulting or demeaning Baxley) was allegedly engaging in unwanted touching of five women in the office, “so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions being taken against them.” While investigating the women’s claims, the EEOC learned of the harassment of Baxley—which ultimately led to his constructive discharge (when the discrimination is so bad it forces the victim to quit). Baxley complained directly to the head of the company, who dismissed his concerns and took no action at all to stop the harassment.
The EEOC determined that it had reasonable cause to believe that Title VII was violated with respect to all five of the women and Baxley. The latter determination was supported, in the EEOC’s view, that McClendon’s behavior towards Baxley occurred because “he did not conform to what McClendon believed was acceptable or expected behavior for a male because of his association with members of the same sex rather than the opposite sex.” This is what makes behavior discriminatory on the basis of sex, rather than simply unprotected bullying.
Title VII and Sexual Orientation Claims
Title VII of the Civil Rights Act of 1964 is at the heart of federal anti-discrimination law. It prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. It doesn’t take a rocket scientist to note that “sexual orientation” does not appear on that list. When federal courts were first asked to treat sexual orientation claims as actionable under Title VII, their response was simple: it’s not on the list.
A well-known example of this response is from the Ninth Circuit in DeSantis v. Pacific Telephone & Telegraph (1979). These rulings are clear and straightforward, but lack any meaningful analysis about the nature of sexual orientation discrimination or its relationship to sex discrimination. These courts found it sufficient to note that Congress did not intend to protect gays and lesbians from discrimination when it enacted Title VII in 1964 (probably true) and, therefore, they did not include it on the list. But sex discrimination doctrine developed incrementally and grew to encompass policies, practices, and behaviors that Congress surely never contemplated. This happened as courts and commentators grew to appreciate the true nature of sex discrimination and its connection to equal employment opportunity. (Nowhere is this incrementalism better documented than in Gillian Thomas’s recent book Because of Sex: One Law, Ten Cases, and Fifty Years that Changed American Women’s Lives at Work.)
Whether Title VII encompasses sexual orientation discrimination is important because documented rates of harassment and discrimination against LGBT employees are high, and there is no other protection under any other federal antidiscrimination law. The only direct prohibition on sexual-orientation discrimination comes from Executive Order 13087, issued in 1998 by President Bill Clinton, which bans such discrimination in the civilian federal workforce. This order was in response to a long, if little known, history of the federal government’s banning gays from federal civil service jobs. (See the unfortunate relics of that history here.) The executive order left in place the “Don’t Ask Don’t Tell” policy, which prohibited openly gay and lesbian individuals from serving in the military and which was finally repealed in 2011.
For decades, advocates have tried to amend Title VII to provide express protection against sexual orientation discrimination. From a first bill by Congresswoman Bella Abzug in 1974, which would have broadly protected gays and lesbians against discrimination across the private sector, to the modern, but narrower Employment Non-Discrimination Act, advocates have lobbied for this change. But none have become law (and none will in the next four years).
Despite those early rulings and failed attempts to amend Title VII, plaintiffs in more recent years have prevailed in cases in which their main complaint was sexual orientation discrimination or harassment. These successes were made possible by two Supreme Court rulings that paved the way for using Title VII as protection against so-called gender policing—the insistence by employers or co-workers that employees behave consistently with their biological sex. Antipathy towards LGBT people is just that—an objection to the person’s attraction to someone of the same sex rather than a different sex, as well as to any effeminate or masculinized behaviors that may accompany that orientation.
In order for an employment action to constitute actionable sex discrimination, it must have been taken “because of sex.” Plaintiffs victimized by sexual orientation discrimination have satisfied this requirement under two theories—sex stereotyping and same-sex sexual harassment—made possible by the Supreme Court.
First, in Price Waterhouse v. Hopkins (1989), the Supreme Court ruled that reliance on sex-role stereotyping can be an actionable form of employment discrimination. There, the Court held that a woman was a victim of sex discrimination when her employer denied her partnership in an accounting firm at least in part because she was insufficiently “feminine” in the way she dressed and conducted herself. That decision catalyzed sex-stereotyping theory as an independent cause of action under Title VII, and it was quickly put to use by effeminate gay men and masculine lesbians who claimed that the hostility and adversity they experienced was sex, rather than sexual orientation, discrimination.
Second, in Oncale v. Sundowner Services (1998), the Court considered a claim of same-sex harassment. The conservative Fifth Circuit ruled that such a claim could never be actionable under Title VII regardless of the facts or circumstances surrounding the discrimination. It just simply could not be “because of sex” if the claim involved one man harassing another. This conclusion was so extreme that it was not a surprise when it was reversed by the Supreme Court—by a ruling of 9-0 and with an opinion written by Justice Scalia. The Court held that the “because of sex” requirement could be met in at least three ways: (i) with evidence of the perpetrator’s homosexuality; (ii) with evidence that the perpetrator in fact targeted only members of one sex; or (iii) with evidence that the harassment took the form of gender-role policing—under the Price Waterhouse ruling—to punish an employee for failing to live up to traditional gender norms. Oncale has both reinforced the use of Price Waterhouse in sexual orientation claims and fueled separate claims for harassment rooted in homosexual desire or gender-targeted bullying.
One might conclude that these decisions provide enough protection for LGBT employees, but they don’t. They give little help to gays and lesbians who conform to sex stereotypes—and even those who don’t are sometimes rebuffed by courts worried about “bootstrapping”—using a cognizable cause of action to remedy a lawful type of discrimination.
The New Trend: Direct Protection Against Sexual Orientation Discrimination
In 2015, the EEOC considered a complaint from an air traffic controller in Miami. He alleged, in essence, that he was passed over for a promotion because he was gay. His evidence included several negative comments from the complainant’s supervisor, such as “We don’t need to hear about that gay stuff.”
In the ruling, Complainant v. Foxx, the EEOC concluded that sexual orientation discrimination, even when not cloaked in gender stereotyping or harassment, violates Title VII. The EEOC’s ruling depended on its view that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” There is no way to understand this type of discrimination, the ruling reasons, without reference to a person’s sex. Sexual orientation is, by definition, being attracted to a person of the same sex.
The EEOC ruling acknowledged the early court rulings to the contrary, but criticized them for failing to really understand the nature of sexual orientation discrimination. Congress may not have intended to ban it, but neither did it intend ban same-sex harassment, nor perhaps any sexual harassment, a term that did not even exist in 1964. Recognizing a direct claim for sexual orientation discrimination is no different—just a more complicated understanding of how a person’s sex is taken into account when he or she is punished for sexual orientation.
Since the EEOC ruling, several federal district courts have joined suit—Isaacs v. Felder Services (Alabama); Terveer v. Billington (D.C.); and Heller v. Columbia Edgewater Country Club (Oregon). A federal district court in California, in Videckis v. Pepperdine University, deemed the distinction between sex and sexual orientation discrimination “illusory and artificial” and, borrowing Title VII principles, held that a claim of sexual orientation discrimination is actionable under Title IX. (A full discussion of this case is here.) A Seventh Circuit opinion in 2016, Hively v. Ivy Tech Community College, rejected a reading of direct protection against sexual orientation discrimination under Title VII, but left open the familiar possibility that gender non-conformity could give rise to a claim.
In this most recent ruling, EEOC v. Scott Medical Health Center, the court analyzed the issue similarly to the EEOC in the Foxx case. It relies on the incremental changes in sex discrimination doctrine, which has resulted in protection from sex-plus discrimination, sexual harassment, sex stereotyping, discrimination against employee spouses, and so on. Why is any of this clearly more covered by the brief language of Title VII than sexual orientation discrimination? In each case, the Supreme Court considered the nature of the behavior and the way in which it was tied to the employee’s sex. Sexual orientation discrimination is no different.
The court in Scott quoted the language from Price Waterhouse that suggests a broad and encompassing view of Title VII:
We are beyond the day when an employer could evaluate employees by assuming or insisting that [employees] matched the stereotype associated with their group, for, ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’
Applying this reasoning to Baxley’s claim, the Scott court concluded that there “is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. . . . This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse.” The court reasoned sexual orientation discrimination is sex stereotyping; “there is no line separating the two.” Moreover, the court concluded, the Supreme Court’s legalization of same-sex marriage shows “a growing recognition of the illegality of discrimination on the basis of sexual orientation.”
As the Court wrote in Obergefell v. Hodges, “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” Certainly, the Scott court was right to note, those “new insights and understandings” are such that we no longer think one’s sexual orientation is a justification for “a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment.” We are beyond that day, and we need courts more than ever to uphold our principles of equality.