As we evaluate whether those who identify with being LGBTQ are in a protected category under Title VII and/or the Americans with Disabilities Act (ADA), it is important to note that Title VII, the ADA and LGBTQ are all terms that may have different meanings to different people, depending on practice area, stage of life, and perspective.
Title VII of the Civil Rights Act of 1964 is a federal law. It serves many purposes — one of which is to protect individuals from discrimination based upon sex. Sex or gender discrimination is treating individuals differently in their employment specifically because an individual is a woman or a man. Title VII makes it illegal for an employer to discriminate against individuals in hiring, firing, and other terms and conditions of employment, such as promotions, raises, and other job opportunities, because of their sex.
The laws of most states also make it illegal to discriminate on the basis of sex. Although the North Carolina Equal Employment Practices Act (NCEEPA) declares that employment discrimination is against the public policy of the state, North Carolina does not have a statute that is analogous to Title VII. One must bring a wrongful discharge claim on the basis of a violation of a state public policy in order to utilize NCEEPA. NCEEPA does not allow for a private right of action. After 40 years in existence, NCEEPA was struck down by legislative action with the advent of HB2, commonly referred to as North Carolina’s Bathroom Bill. After much advocacy by groups like NCAJ, NCEEPA was restored in July 2016.
Additionally, there are specific laws protecting employees of federal contractors from sex or gender discrimination. Executive Order 11246 forbids federal contractors who do over $10,000 in government business per year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. Additionally, Executive Order 13665 protects employees of federal contractors from discrimination based on compensation inquiries, discussions, or disclosures. For more information on protections specific to employees of federal contractors, see www.workplacefairness.org/federal-contractors.
The United States Department of Labor is undergoing considerable changes under the current administration; whether or not the regulations will become more or less consistent remains to be
seen. A final rule that would make unequivocal protections against discrimination on the basis of sex, including sexual orientation, sex stereotypes, gender identity and transgender status, would completely change the landscape and further enforce Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veteran’s Readjustment Assistance Act of 1974.
The ADA prohibits discrimination against individuals with disabilities. Enacted in 1990 and amended in 2008, the ADA, as amended, is now known as the Americans with Disabilities Act Amendments Act (ADAAA), which became effective January 1, 2009. The ADAAA changed the definition of disability, making it easier for qualified individuals to bring legal claims. The ADAAA is not limited to workplaces, but includes public and private places that are open to the general public. The purpose is not to provide special treatment, but rather to ensure that individuals with disabilities have the same rights and opportunities as those individuals without disabilities. The ADA gives civil rights protections to individuals with disabilities similar to those afforded to employees by Title VII on the basis of race, color, sex, national origin, age, and religion.
While this article focuses primarily on employment, it is important to note that the ADA is not limited to employees and is divided into five parts, known as titles. Title I deals with employment and covers private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees; Title II deals with programs and activities of state and local government entities; Title III deals with places of public accommodation; Title IV deals with telephone and internet companies as related to individuals with hearing and speech disabilities; and Title V is a catch-all type of provision, dealing with retaliation, coercion and clarification on conditions that are not deemed to be disabilities.
Both Title VII and the ADA require that an employee exhausts administrative remedies and are enforced by the Equal Employment Opportunity Commission (EEOC).
The Gender Codex
The challenge in dealing with discrimination based on sexual orientation or sexual identity is the fluidity of the identity labeling, and partly the fact that some of the terms are effectively a rejection of labeling. As such, we will define the most common terms here for our purposes, recognizing that others may have definitions that differ in ways subtle or pronounced.
The most common current collective shortcut you will see today is “LGBTQ,” an initialism for “Lesbian, Gay, Bisexual, Transgender, and Queer.” Although 40 years ago “gay” might have been understood to embrace anyone who wasn’t heterosexual, understanding has gradually expanded to acknowledge that gay men and lesbians faced both common and disparate social issues, as did bisexuals. Growing recognition and understanding led to expanded efforts to address the various needs and concerns of others who didn’t “fit the heteronormative mold.” Note that, in some contexts, especially when dealing with adolescents, “Q” may be intended to designate “Questioning,” in acknowledgment of sexual discovery and the uncertainty that may accompany it. Finally, in some quarters, an “I” may be appended to designate “Intersex.”
There is resistance in some quarters to the use of “homosexual” to describe an individual, arguing that “homosexual” describes specific behaviors. Proponents of this distinction generally argue that homosexual or bisexual describe sexual orientation, i.e., the identity[i] of the person with whom you prefer to have sex. By contrast, “lesbian” and “gay” describe your affective orientation, or the sexual identity of the person to whom you are romantically attracted. A further distinction is made between sexual identity and biological gender.
In everyday language as well as in the law, the terms “gender” and “sex” are used inter-changeably, but the two terms have different meanings. Social scientists use the term “sex” to refer to a person’s biological or anatomical identity as male or female, while reserving the term “gender” for the collection of characteristics that are culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, or gender, or both sex and gender.
L – Lesbian refers to homosexual women.
G – Gay, in the current vernacular, primarily speaks to homosexual men, but may be used by some as a catch-all for non-heterosexual persons generally.
T – Transgender generally refers to a person who has adopted the sexual identity of the “other” gender. By contrast, a person whose biological gender is consonant with sexual identity is referred to as “cisgender,” by analogy to cis- and trans- molecules in chemistry.
Q – Queer generally refers to an individual who rejects the notion of, or need for, labeling sexual attraction or sexual identity, seeing both as fundamentally private, situational, and inherently fluid.
Q – Questioning refers to an individual – usually an adolescent in the normal course of sexual development – exploring sexual attraction and identity, and not yet comfortable adopting a label. This period of self-discovery, however, can occur at any age.
I – Intersex is a general term for any of a number of conditions in which a person is born with the reproductive or sexual anatomy of both genders, or anatomy that otherwise defies ready identification as “male” or “female.”
Gender Non-Conforming refers to an individual who rejects social norms or constraints on gender-based expectations, often reflected in wearing androgynous clothing or hair styles, adoption of nicknames, use of pronouns, or otherwise freely moving between the modes typically identified with one or the other gender. The term “genderqueer” is sometimes synonymous, especially when coupled with self-identifying as queer.
The phrase “gender identity” refers to one’s “self-identification” as a man or a woman, as opposed to one’s anatomical sex at birth. By example, one’s gender identity matches one’s anatomical sex: people born with the physical characteristics of males usually identify as men and those with physical characteristics of females identify as women.
However, for some people, gender identity does not always align with one’s anatomical sex. Thus, for transsexual people, gender identity and anatomical sex are not in agreement. Someone born male may have a strong internal self-image and self-identification as a woman, or someone born female may have a strong internal self-image and self-identification as a man. Some transsexual people seek medical treatment in the form of hormone therapy or surgery to make their physical sex agree with their gender identity.
The term “transgender” is an umbrella term to describe anyone who in one or more ways does not conform to gendered stereotypes of gender identity and/or gender expression. Transgendered people can face serious discrimination in the workplace, generally because of a failure to conform with traditional sex stereotypes or gender roles.
Gender dysphoria is defined as a form of distress that some transgender individuals experience as a result of identifying with a gender different than their sex designated at birth. It is a medical condition.
Cases to Note
Price-Waterhouse v. Hopkins and Tudor v. Oklahoma State University
Gender stereotyping is the practice of ascribing to an individual male- or female-specific attributes, characteristics, or roles by reason only of his or her membership in a particular gender group. Although not an LGBTQ issue, in 1989, Price-Waterhouse v. Hopkins held that discrimination based on gender nonconformity may amount to sex-based discrimination. In that very important U.S. Supreme Court case, the Court ruled that discrimination based on gender stereotyping was illegal sex discrimination under Title VII. And more recently, there was a $1.165M award in Tudor v. S.E. Oklahoma State University. The court held, “Title VII’s prohibition against sex discrimination is best read to extend the statute’s protection to claims based on an individual’s gender identity, including transgender status.” Id. This case was supported by the Department of Justice (when argued).
Note, by contrast, the current Department of Justice’s position on sexual identity discrimination in Masterpiece Cake Shop, Ltd., supra, supports the discriminatory position.
Until very recently, federal and state courts have uniformly held that transsexual people are not protected under Title VII on the grounds that Congress did not intend when passing the law for the term “sex” to protect transsexuals. Some recent court decisions have concluded that transsexual persons are protected from discrimination under Title VII and other sex discrimination statutes, as stated above, based on gender stereotyping, which is illegal under Title VII, as the Supreme Court held in Price Waterhouse.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Currently, the Masterpiece Cake Shop case is pending before the U.S. Supreme Court and is expected to be decided later this year. Like Obergefell, the 2015 landmark case that established same sex marriage, Masterpiece is controversial and is being described as the case that will balance free religion, free speech and gay rights. However, if not narrowly construed, it could have far-reaching implications beyond cake shops and into workplaces across the United States, giving revitalization to discrimination in the workplace. This would be more detrimental than “HB2” and would be so on a national level.
Blatt v. Cabela’s Retail, Inc.
In a recently decided Pennsylvania case, Blatt v. Cabela’s Retail, Inc. the court concluded that transgender individuals with Gender Dysphoria are not excluded from pursuing civil rights protections under the ADA. However, the court did not decide whether Cabela violated the law, merely that Blatt stated a claim under the ADA. The court reached its ruling by focusing solely on the issue of Gender Dysphoria as a medical condition, distinguishing between Gender Dysphoria and gender identity disorders. To date there has not been a decision as to whether the actions of Blatt’s employer violated Title VII or her equal protection rights under the law. However, while this case exemplifies the use of the ADA as a potential remedy, because this case is not binding on other courts, it should not be relied upon as a viable option for all jurisdictions.
In Cabela, the facts of the case involved an employee who had been diagnosed with gender dysphoria and her proposed accommodations included that she be issued a female uniform, use a female name, and utilize the female bathroom. Management denied her accommodations request, refused to accommodate until her legal marker (male v. female) was legally changed. Consequently, she was taunted by her co-workers and in spite of having a strong performance, she was terminated six months later.
Are Title VII and ADA Viable Workplace Solutions for LGBTQ Individuals?
Because the federal trial courts in various jurisdictions across the United States have been inconsistent in analyzing LGBTQ rights within the current anti-discrimination laws, outcomes will continue to be varied until the U.S. Supreme Court addresses the issue. So what are the options?
The issue is whether these anti-discrimination laws apply to LGBTQ employees. In addition to Title VII and the ADA, some courts have ruled that this form of discrimination violates the Equal Protection Clause of the 14th Amendment.
Additionally, as stated earlier, guidance can be issued from the Executive Branch in the form of an Executive Order. However, guidelines developed under President Obama were rescinded under President Trump. “While the New Orleans 5th U.S. Circuit Court of Appeals and other federal jurisdictions have held that Title VII’s prohibition on sex discrimination does not include sexual orientation, the Chicago-based 7th Circuit, found that discrimination on the basis of sexual orientation is sex discrimination and is prohibited by Title VII. Yet, the 11th Circuit held that Title VII does not prohibit discrimination based on sexual orientation; and the 2nd Circuit remains to fully weigh in.These variations are indicative of the fact that the law is somewhat unsettled and there are several emerging and developing issues.
Recent Developments and Emerging Issues
There are several cases addressing LGBTQ issues in schools and progress is being made. For example, in a recent Wisconsin School District Case, a transgender student’s discrimination lawsuit was settled for $800,000.00. Wisconsin is in the 7th Circuit, comprised of Illinois, Indiana, and Wisconsin. The crux of the lawsuit involved the fact that a student born with female genitalia identified with being a boy and began openly doing so his freshmen year of high school. He was forbidden from using the boys’ bathroom and made to use the girls’ bathroom. The school also used female pronouns with him after he asked them to recognized him as a male. The court ruled in favor of the student, and the appeals court upheld the injunction in May 2017. The school district filed a petition to the U.S. Supreme Court, but withdrew its petition after the school board voted 5-2 to pay an $800,000 settlement to the student.
School Districts and Boards are being persuaded that these are legitimate issues warranting special attention, policies and guidelines. Where the HB2 issue more or less originated in Charlotte, North Carolina, Mecklenburg County, North Carolina recently has put itself back in the swing seat. At the end of January 2018 at a contentious school board meeting, Charlotte Mecklenburg School Board members voted 7-2 to take a stronger position on supporting LGBTQ students.
While being subject to an additional set of rules and governance, the military is not without its own set of issues and obviously is a place of employment. The military transgender ban is an example of discriminatory realities. As of August 2017, the directive issued under President Trump banned military healthcare plans from providing gender dysphoria related services to members of the military. The courts swiftly and strongly condemned and suspended the policy statement.
So on the question of how can we use Title VII and the ADA to protect LGBTQ people in the workplace, there is no definitive answer. As with past Civil Rights issues, the trailblazers have much opportunity to blaze the trail. Depending on the set of facts, circumstances, and jurisdiction, there are more options and possibilities for work-arounds than in years past. However, the law is still developing in this area. Optimistically, based on current trends, it is likely that more federal and state courts may find that discrimination on the basis of gender identity and gender stereotyping are violations of currently existing sex discrimination laws. Any more than that may be a reach. As it relates to the ADA, while there has been some entry into the area of Gender Dysphoria, the expansion of this claim remains to be seen. There seems to be more consistency in outcomes around Equal Protection Claims than Title VII claims on the basis of sexual orientation. Regardless of the position you take, these emerging and developing issues place emphasis on the importance our courts have in interpreting the law and civil liberties for our communities.