Daphne Wilson, Texas Legal Services Center
Almost half of U.S. states have no explicit protections for LGBTQ workers. While many large cities have explicit protections, they vary widely. After decades of resistance in federal courts, there has been recent movement in federal caselaw to extend Title VII protections to claims based on sexual orientation and gender identity (SOGI).
Though this area of law is rapidly evolving, for now, there are no express prohibitions against employment discrimination or harassment on the basis of SOGI. Over 60 bills with the aim of prohibiting discrimination and/or harassment on the basis of SOGI have been introduced; none have made traction. Notably, the Equality Act of 2017 would extend the protections promulgated in the Civil Rights Act of 1964 to prohibit discrimination and harassment on the basis of SOGI, including sexuality and gender-related characteristics. This act has been introduced in both the House and the Senate, but it has made no further progress.
Currently, 21 states prohibit employment discrimination in both public and private sectors for SOGI. One state prohibits employment discrimination by both public and private employers on the basis of sexual orientation, but not gender identity. Six states have prohibitions against SOGI-based employment discrimination by public employers. Five states offer protections based on sexual orientation, but don’t include gender identity. Texas is among the 17 states with no explicit provisions prohibiting SOGI-based employment discrimination.
Currently, over 400 cities or counties prohibit discrimination on the basis of SOGI. Though Texas does not offer any statewide protections, many Texas cities provide for varying levels of protection through ordinances, policies, or directives. The Human Rights Campaign’s Municipal Equality Index keeps current information on relevant local rules.
Status of Federal Caselaw
Historical Context: Title VII of the Civil Rights Act of 1964 in the Supreme Court
Federal caselaw has begun to answer the question of whether the existing protections in Title VII of the Civil Rights Act extend to individuals seeking protection from harassment and discrimination on the basis of SOGI. Title VII prohibits discriminatory public and private employment practices based on an individual’s sex, but courts have historically been resistant to arguments that “sex” includes sexual orientation or gender identity. Before 1989, the Supreme Court had long held “sex” in Title VII to mean only a person’s biological sex.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), was the first expansion of the definition of “sex” in Title VII. The Court decided in Price Waterhouse v. Hopkins that sex stereotyping is a prohibited basis for discrimination under Title VII.
In 1998, the definition of “sex” in Title VII was expanded further. In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Court held that same-sex harassment is harassment “because of sex” under Title VII. Importantly, the Court also suggested that Title VII protections can cover “reasonably comparable evils” that may not have been specifically intended when the law was passed.
Title VII and SOGI in lower federal courts
To date, the Supreme Court has not made a ruling whether employment discrimination or harassment based on SOGI is prohibited under Title VII. Several lower courts, however, have begun to address this issue and extend protections more broadly. Notably though, protections have largely been expanded where an individual is discriminated against or harassed because of appearance or behavior that does not conform with typical sex stereotypes, not necessarily because of SOGI per se.
Recently, circuits have split over whether SOGI-based discrimination or harassment is prohibited under Title VII. In July 2016, the 7th Circuit, in Hively v. Ivy Tech Community College, South Bend, 830 F.3d 698 (7th Cir. 2016) held that Title VII does not prohibit discrimination based on sexual orientation. However, the Court in Hively discussed an EEOC decision that held that discrimination based on sexual orientation is in fact prohibited under Title VII. Though the Court declined to extend that reasoning, the expansive discussion indicated that there may soon be a shift. Indeed, the 7th Circuit did vacate its prior ruling when the decision was reviewed en banc in 2017. The 2nd Circuit made a similar ruling in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018), in spite of opposition from the DOJ. However, neither circuit addressed whether Title VII covers claims based on gender identity harassment or discrimination.
In March 2018, the 6th Circuit in EEOC vs. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), extended Title VII protections to workers’ claims of harassment and discrimination based on gender identity.
Currently, there are no protections for LGBTQ workers under Title VII in the 1st, 3rd, 4th, 5th, 8th, 9th, 10th, 11th, or D.C. circuits. While there have been increasing discussions of LGBTQ rights in employment and other areas, the current White House administration has demonstrated that it will strongly oppose any efforts to extend Title VII protections to LGBTQ workers.
Editor’s note: Daphne Wilson received a national conference scholarship from the State Bar of Texas Legal Access Division to attend the 2018 Public Health Law Conference in Phoenix, Arizona. The Fifth Circuit issued an opinion involving discrimination against transgender workers on February 6, 2019: Wittmer v. Phillips 66 Co., No. 18-20251 (5th Cir. 2019). Analysis of the opinion from Joanna L. Grossman, Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law in Dallas, is here. Also in 2019, bills were filed in the 86th Legislature on this topic. Find those by searching here.
Photo credit: The Gender Spectrum Collection