Lesson 11 Sexual Orientation

Discrimination Based on Employment Sexual Orientation and Gender Identity Laws

Introduction

This document provides a comprehensive overview of employment discrimination concerning sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964, including significant legal cases and implications for the interpretation of these protections.

Key Cases Involved

  • Team Assignments:

    • Team 1: Lynch V. Freeman

    • Team 2: Sassaman V Gamache

    • Team 3: Lautermilch V Findlay City Schools

Quote by Winston Churchill

"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

Title VII and Sexual Orientation Discrimination

Question:

Does Title VII encompass sexual orientation discrimination?

Historical Context


Historically, courts have interpreted Title VII as not protecting against discrimination based on sexual orientation, as illustrated by the Ninth Circuit ruling in DeSantis v. Pacific Telephone and Telegraph Co. (1979) which concluded that Title VII does not prohibit discrimination based on sexual orientation.Key arguments that were rejected by the Ninth Circuit included:

  • A broad interpretation of the term "sex" to include sexual orientation.

  • Claims that there is a disparate impact on men who might more likely be perceived as gay by their coworkers.

  • The assertion that discrimination based on one’s choice of sexual partner represents an effect of sex discrimination.

  • Arguments focusing on stereotypes about gender behavior.

Bostock v. Clayton County

This landmark case involved three separate lawsuits related to employment discrimination based on sexual orientation, which were consolidated and brought to the Supreme Court. The majority opinion emphasized that it is inherently impossible to discriminate against someone on the basis of sexual orientation without also discriminating on the basis of sex.

Majority Opinion Details

The court elaborated on how employment decisions could be influenced by an individual's sex and their sexual attraction:

  • An example provided involves a male employee who is attracted to men facing discrimination while a female employee attracted to men is retained.

  • From a transgender context perspective, if a male identified as female is retained while a female identifying as female is also retained, it demonstrates that discrimination based on sexual orientation is linked to the individual's sex.

  • The court rejected counterarguments claiming that firing both homosexual employees constitutes no discrimination.

Historical Perspectives at the time of Title VII's Implementation (1964)

In 1964, societal norms were vastly different, and few individuals envisioned that Title VII would apply to issues of sexual orientation or gender identity, leading to significant judicial interpretation discrepancies.

Dissenting Opinion of the Bostock Case

The dissent contended that the definition of "sex" as it pertains to Title VII does not encompass sexual orientation. Specifically, it asserted that:

  • The jurisprudential history of Title VII has historically focused on biological sex differences and not on sexual orientation.

  • For instance, an explicit policy prohibiting hiring individuals who are gay, lesbian, or transgender does not rely on differentiation based on biological sex itself.

  • A broader discussion revolved around whether the terms 'homosexual' or 'transgender' can be legitimately separated from traditional definitions of sex.

Bottom-Line Differences

The assessment of what constitutes "sex plus" cases, particularly concerning sexual orientation and gender identity within Title VII, remains complex and contentious.

Zarda’s Attorney Quote

  • An argument emphasized states that if differential treatment arises from an individual's sex, then changing that sex would alter the treatment received.

Future Considerations

Emerging legal interpretations may address nuances surrounding:

  • Use of bathrooms and locker rooms.

  • Grooming policies that may disproportionately affect gender nonconforming individuals.

  • Participation in women’s sports and the implications of transgender athletes.

  • Health care policies regarding sex reassignment surgery, especially concerning insurance coverage and employer responsibilities.

Frappied v. Affinity Gaming Black Hawk, LLC (10th Cir. 2020)

This case focused on retrospective discrimination following the acquisition of a casino, where predominantly female plaintiffs, aged 40 and older, alleged sex-plus-age discrimination. The 10th Circuit ruled that claims of sex-plus-age discrimination are cognizable under Title VII, establishing that if altering an individual's sex would change the employer's decisions, then discrimination is indeed occurring. Importantly, it was clarified that the ‘plus’ characteristic does not have to be a protected classification as per Title VII, expanding the interpretation of discrimination coverage.