Business and Legal Insights

Today, while it is understood that the phrase “because of sex” includes gender stereotyping, the law remains in flux as to whether discrimination “because of sex” includes discrimination because of “sexual orientation.”

Title VII makes it unlawful for an employer to discriminate against any individual “because of” the individual’s sex.[1] In 1989, when a woman was passed over for partnership because she was too “macho” and in need of “charm school” courses, the United States Supreme Court concluded that she could bring a discrimination claim because the phrase “because of sex” included gender stereotyping.[2]

Since then, the scope of the phrase “because of sex” has continued to evolve and remains a source of extensive litigation.[3] In July 2017, the phrase “because of sex” became the focus of a clash between two government agencies: the United States Department of Justice (“DOJ”) and the Equal Employment Opportunity Commission (“EEOC”).

On July 26, 2017, the DOJ filed an amicus brief in Zarda v. Altitude Express arguing that discrimination because of sexual orientation is not discrimination “because of sex” under Title VII. The DOJ argues that “[t]he essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect… Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination.” [4]

The DOJ’s brief directly conflicts with the EEOC’s stance on this exact issue, at least as articulated in the EEOC’s recent amicus brief in Zarda v. Altitude Express. The EEOC, which enforces Title VII, takes the position that Title VII “protects persons who have been discriminated against based on sexual orientation.”[5] The EEOC’s amicus brief argues that sexual orientation falls “squarely within Title VII’s prohibition on the basis of sex.”[6]

Employers should continue to monitor this area of federal law while remaining cognizant of local laws because Title VII’s protections are a “floor” and not a “ceiling.”  Various state, county, and municipal laws now explicitly include “sexual orientation” as a protected category. For example, Palm Beach County,[1] Miami-Dade County,[2] and Osceola County[3] have all adopted ordinances that explicitly prohibit discrimination in employment based on “sexual orientation.”  Shutts will continue to monitor this agency clash and related court decisions surrounding this current issue to keep employers updated.

[1] Sec. 2-312.

[2] Sec. 11A-1.

[3] Sec. 27-6.

[1] 42 U.S.C. § 2000e–2(a)(1).

[2] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[3] See Hively v. Ivy Tech. Comm. College of Indiana, 853 F.3d 339 (7th Cir. 2017) (reasoning that “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”).

[4] Brief for the United States as Amici Curiae Supporting Respondents, Zarda v. Altitude Express, 2017 WL 3277292, 855 F. 3d 76 (2d Cir. 2017) (No. 15-3775).

[5] See Addressing Sexual Orientation & Gender Identity Discrimination in Federal Civilian Employment, EEOC (June 2015).

[6] Brief for the United States as Amici Curiae Supporting Respondents, Zarda v. Altitude Express, 2017 WL 2730281, 855 F. 3d 76 (2d Cir. 2017) (No. 15-3775).