Thursday, February 7, 2013
In my last post here, I discussed recent developments in the EEOC’s (and the courts’) treatment of sex discrimination claims by transgender workers under Title VII. In this post, I want to take up the related issue of discrimination against lesbian and gay employees as a form of sex discrimination under Title VII.
Traditionally, sex discrimination claims brought by lesbian and gay employees under Title VII have not fared particularly well. Courts have tended to be deeply skeptical of what they perceive as efforts to “bootstrap” anti-discrimination protections for sexual orientation into Title VII, and have granted dismissals (on both summary judgment and motions to dismiss) at very high rates.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) improved things somewhat for lesbian and gay employees. After Price Waterhouse, many courts recognized—at least in theory—that gender stereotyping claims should be available to lesbian and gay employees, where they are treated differently because of a perceived failure to conform to gender stereotypes. Although courts have continued to dismiss the sex discrimination claims brought by lesbian and gay workers at fairly high rates, there has been a meaningful, if limited, expansion in the availability of sex discrimination claims to gay and lesbian workers post-Price Waterhouse. See, e.g., Prowel v. Wise Business Forms, 579 F.3d 285 (3d Cir. 2009) (reversing award of summary judgment on a gay employee’s sex discrimination claim).
Unlike in the gender identity context, however, these post-Price Waterhouse decisions in the sexual orientation context have generally stayed far away from any suggestion that sexual orientation may be per se sex discrimination. Instead, courts have closely cabined the circumstances in which a successful sex discrimination case can be brought by lesbian and gay workers, allowing cases only where there is clear evidence that an employee was targeted because of classic gender stereotyping—behaving or appearing insufficiently masculine (as a man) or insufficiently feminine (as a woman).
Two recent EEOC decisions have taken a substantial step away from this limited approach and towards a per se rationale for treating sexual orientation discrimination as a form of sex discrimination.In the two recent cases, Veretto v. Donahoe and Castello v. Donahoe, the EEOC found that it constitutes gender stereotyping for an employer (or co-worker) to target an employee because of societal expectations that men should have romantic relationships exclusively with women and women should have romantic relationships exclusively with men. As the EEOC put it in Castello:
“Complainant has argued that MDO was motivated by the sexual stereotype that having relationships with men is an essential part of being a woman…[W]e find that Complainant’s allegation is sufficient to state a viable [sex discrimination/hostile work environment] claim under Title VII.”
Veretto and Castello, unlike the EEOC’s decision in Macy, are not precedential, and thus do not necessarily constitute the official policy of the agency. Nevertheless, they are a striking departure from the restrained approach that has been taken to date by adjudicators to approaching Title VII sex discrimination claims on behalf of lesbian and gay employees. If they are endorsed by the federal courts (or by the EEOC as a matter of broad policy), they could radically transform the legal landscape for lesbian and gay workers.
The doctrinal formalist (and LGBT advocate) in me wants to believe this is possible. Sexual orientation discrimination is no doubt deeply steeped in stereotypes about how men and women should behave, and in particular, who is an appropriate partner for a person of a particular sex. From a formal doctrinal (and from a social realist) perspective it strikes me as profoundly sensible to treat sexual orientation discrimination as a form of sex discrimination in most, if not all, circumstances. (Cf. DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979) (rejecting the argument that sexual orientation discrimination is associational sex discrimination and thus covered by Title VII)).
But the realist in me sees little hope that the courts will in fact adopt this type of a broad per se approach. Whatever the reasons, courts have long been dedicated to policing the boundary between sex and sexual orientation discrimination—and to declaring the two non-coextensive. It seems unlikely to me that the courts will be willing to move away from that position, at least in the near term, although transformation in the LGBT rights area has often moved faster than one might expect.
What do you think? Could the EEOC’s decisions in this area become the leading edge of a doctrinal shift towards treating sexual orientation discrimination as per se sex discrimination under Title VII?