Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of sex.” Does that include closely related concepts such as gender identity, gender expression and sexual orientation?
This week, the U.S. Supreme Court will hear oral arguments on whether Title VII prohibits workplace discrimination based on sexual orientation and/or gender identity. If the high court finds that these characteristics are protected by Title VII, it would mean that discrimination against LGBT individuals would be federally illegal.
Currently, whether LGBT folks are clearly protected from job discrimination depends in large part on what city or state they work in and what kind of job they have. For example, in Virginia, the city of Alexandria and Arlington County prohibit discrimination based on sexual orientation. Also, an executive order extends protection to state employees. That leaves most private sector employees with little obvious protection.
Maryland law prohibits discrimination based on sexual orientation, as well, but not transgender status. Washington, D.C., relies on federal law for its protections, which are unclear.
EEOC says Title VII protects gender-related concepts
It’s important to note that the Equal Employment Opportunity Commission has taken the position that Title VII’s prohibition on discrimination “because of sex” does prohibit discrimination based on gender identity, gender expression and sexual orientation. It points to a long line of cases in the federal courts and Supreme Court that support that position.
For example, in Oncale v. Sundowner Offshore Servs., the Supreme Court ruled that Title VII prohibits same-sex sexual harassment. And, in Price Waterhouse v. Hopkins, it ruled that “because of sex” includes the concept of gender expression and found that an employer cannot discriminate against someone because they do not comply with societal expectations or stereotypes about their gender.
Despite the EEOC’s position, however, the Justice Department argues that Title VII does not protect gender-related concepts, but only the traditional concept of gender. If that position were to prevail, it would mean that, in many locations, gays, lesbians and transgendered individuals could be fired or suffer adverse job actions with no opportunity for redress.
The Supreme Court is scheduled to hear oral arguments October 8 in three cases where these issues arose. We will keep you up to date on developments.