By Dan Gephart, October 16, 2019

The Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) made it clear that Title VII not only protects employees from being treated differently based on their sex. It also protects employees from being treated differently because they fail to adhere to their gender norms.

We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n 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.’

The Hopkins decision is the bedrock for protection from gender stereotypes under Title VII. In recent years, the EEOC has interpreted that protection to include gay, lesbian, and transgender employees.

In Macy v. Attorney General, EEOC No. 0120120821 (April 20, 2012), the EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex’ and such discrimination therefore violates Title VII.”  And in Baldwin v. Secretary of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

Many courts have agreed with the EEOC. The 11th Circuit Court of Appeals may have put it most succinctly, at least in terms of transgender employees, ruling “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

But not all courts agree with the Commission. And neither does the Department of Justice. DOJ attorneys made their case last week before the Supreme Court, which heard oral arguments on Bostock v. Clayton City and Zarda v. Altitude Express, to determine whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964. The High Court also heard arguments in Harris Funeral Homes v. EEOC to determine whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

During the hearing last week, Solicitor General Noel Fancisco argued: “Sex means whether you’re male or female, not whether you’re gay or straight.” The lawyer representing Bostock and Zarda told the Justices that all they need to do is “show that sex played a role here.”

How will the Supreme Court rule? It’s hard to guess. If you saw my football pools this year, you’d immediately look elsewhere for prognostication. And if you’re talking legal analysis, you’d be much better off asking FELTG President Deborah Hopkins, or read FELTG instructor Meghan Droste’s recent article.

Many analysts see a 5-4 decision with Justice Neil Gorsuch as the deciding vote.

One thing we know for sure: A ruling in the Department of Justice’s favor will allow employers, including federal agencies, to fire an employee solely for being gay, lesbian, or transgender, or even for being someone who doesn’t neatly conform to gender-based standards. It’ll strike a serious blow to diversity and inclusion in the federal workplace.

Let’s face it, not everybody has a comfortable grip on the law as it is now. It’s painful to imagine a workplace where the actions described in the following EEOC decisions go unchecked:

  • In Larita G. v. USPS, EEOC No. 0120142154 (November 18, 2015), a supervisor referred multiple times to a lesbian employee as “the little boy” or a “guy.” When the complainant told the supervisor “I am not a guy, I am a lady,” the supervisor replied, “So that’s why you have to be so difficult.”
  • In Couch v. Department of Energy, EEOC No. 0120131136 (August 13, 2013), coworkers told the complainant that he was unwelcome and should get another job. They referred to him as “fag,” “faggot” and “gay” and told him everything he did was “gay.”
  • In Jameson v. USPS, EEOC No. 0120130992 (May 21, 2013), the EEOC found hostile work environment as the supervisor “repeatedly” referred to a transgender female employee as “he” and encouraged others in the workplace to use the male pronoun and refer to the employee by the employee’s previous, male name.

Actually, behavior like that in the EEOC cases above still does sometimes go unchecked. Last week, the American Federation of Government Employees Local 3403 demanded the agency take action against managers who bullied, intimidated, and harassed LGBT employees at the National Science Foundation.

It could get a lot worse for LGBTQ+ employees depending on how the Supreme Court eventually rules on this trio of gender stereotyping cases. [email protected]

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