Redefining Title VII Protections

Sexual orientation doesn't fall under the landmark Civil Rights Act of 1964. But many experts expect that will soon change.

Thursday, September 15, 2016
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Sex was simpler in 1964.

That's the year Congress passed the U.S. Civil Rights Act, which protects workers against on-the-job discrimination or harassment because of "race, color, religion, sex, or national origin." Though same-sex marriage is now legal nationwide and the transgender-rights movement has widespread support, the law holds that "sex" still means what it meant 52 years ago: male or female, period.

But experts say pressure is mounting on courts to adopt a broader reading of the law to include sexual orientation and identity. And for a host of reasons, employers would be wise to act as though they already have.

"I still think it's only a matter of time before there's federal protection for LGBT individuals" says Robin Shea, a partner with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. "Employers might as well be ready for it."

Among the most aggressive proponents of broader protection is the Equal Employment Opportunity Commission. For the first time, the commission ruled in July 2015 that sexual orientation is covered by Title VII of the act. Since then the agency has fought hard -- so far with mixed results -- to persuade federal courts to do the same.

Many judges have expressed sympathy for the EEOC's argument. But at least at the appellate level, none has accepted it. Most recently, in Hively v. Ivy Tech Community College, a 7th Circuit panel found that sexual orientation or identity is not covered by Title VII until the U.S. Supreme Court blesses a broader interpretation or Congress changes the law.

"Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed . . . and otherwise discriminated against solely based on who they date, love, or marry," wrote Judge Ilana Rovner in the July 28 opinion. "But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent."

That sounds clear enough -- but there's nothing open and shut about this debate. For example, a pair of Supreme Court decisions have propped the door open to let some sexual-orientation cases through. In a 1998 case called Oncale v. Sundowner Offshore Services, the court held that same-sex harassment falls under Title VII.

And in a 1989 ruling in Price Waterhouse v. Hopkins, the court ruled that discrimination based on sex stereotypes also falls under Title VII. That means, for example, that a female employee -- regardless of sexual orientation -- can file a Civil Rights Act suit alleging she was harassed because she has masculine mannerisms. But she still cannot sue over claims she was harassed for being a lesbian.

That fine line has created confusion for both plaintiffs and defendants in Title VII cases involving sexual orientation. Some federal trial courts have joined the EEOC in favoring a broader definition, leading to a welter of conflicting rulings. "The law is just really messed up in this area," says Shea with a laugh.

Another case in the pipeline could lead -- eventually -- to clarity. In Christiansen v. Omnicom, a gay male employee of the DDB advertising agency alleges he was mocked by a supervisor because of his sexual orientation. Federal judge Katherine Polk Failla ruled that his harassment claim was not allowed under Title VII, but noted that the law's narrow interpretation of "sex" was increasingly unreasonable given changes in society and the law.

Case law shows "no coherent line can be drawn" between sex-stereotyping claims, which are allowed, and sexual orientation claims, which are not, Failla wrote. "Yet the prevailing law . . . is that such a line must be drawn."

Failla even explicitly invited higher courts to broaden the interpretation of "sex" in Title VII: "One might reasonably ask -- and, lest there be any doubt, this court is asking -- whether that line should be erased."

The case is now before the 2nd U.S. Circuit Court of Appeals. Many powerful groups, such as the American Civil Liberties Union, have weighed in with briefs in favor of the plaintiffs. So have 128 Democratic members of the House and Senate in an unusual gesture of Congressional support.

Whether it is this case or another, many experts expect an appeals court to adopt the EEOC's broader view of Title VII. The U.S. Supreme Court would then have to choose between conflicting appellate decisions, potentially turning a broader interpretation of "sex" into settled law.

"I certainly think that the changing legal landscape on these issues . . . sets the stage nicely for a shift," says Jennifer Garner, an attorney with Bowditch and Dewey in Boston. "That being said, the hurdle here is the existing legal precedent."

Overturning precedent requires a compelling legal argument, Garner says. But that argument is growing stronger. "Although I'm not sure whether it will be the Christensen case that starts the shift, I do think that this change is coming, and I think it will likely come from the courts, not from Congress," she says.

Not all experts agree. Jill Rosenberg, an employment partner with Orrick in New York, thinks even the 2nd Circuit -- known as being somewhat more liberal than the 7th -- will be reluctant to overturn precedent.

"At a practical level, it's going to be hard" for courts to reinterpret the definition of "sex" in Title VII, Rosenberg says. "I think the answer does lie in legislation."

That could happen. Amendments that would broaden Title VII have been introduced on Capitol Hill regularly since the 1970s, often with bipartisan support. Rosenberg and Shea both note that a shift in the makeup of Congress in November could open the door to adoption.

Where the courts may be more willing to expand the application of Title VII in discrimination cases is in cases filed by transgender workers, Rosenberg notes. Unlike gay or lesbian plaintiffs, transgender workers who are harassed have a complaint that can be framed in terms of their sex, not their sexual orientation.

"I think the argument is a little easier because there is much more of a connection to gender," she says.

Even before the law changes, however, employers are best advised to treat sexual orientation and identity as though they were already protected by Title VII. For one thing, such a policy is part of maintaining a respectful work environment, Shea notes. And Department of Labor regulations already prohibit such discrimination by any company with federal contract. And more than 30 states have civil-rights laws that cover such cases.

Even in North Carolina, one state that has not passed such a law, "I advise employers to do that," says Shea, whose office is in Winston-Salem. "There are a lot of legal claims a person can assert even in a state that offers no protections."

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