Two U.S. Supreme Court decisions have undermined the reasoning of both lines of cases and, as a result, recent cases have held that LGBT people may be entitled to protection under Title VII in some circumstances. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that Title VII was not limited to discrimination on the basis of one’s biological status as a man or a woman but instead prohibits the “entire spectrum” of discrimination on the basis of sex, including discrimination on the basis of gender stereotypes. In Price Waterhouse, plaintiff Ann Hopkins was denied a partnership at an accounting firm because she was deemed to be insufficiently “feminine.” Id. at 234–35. To improve her chances for partnership, Hopkins was told she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The employer argued that Title VII did not prohibit discrimination based on gender stereotypes. The Supreme Court disagreed. “As for the legal relevance of sex stereotyping, 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 ‘in 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.’” Id. at 251 (internal citations omitted). Nine years later, in Oncale v. Sundowner, 523 U.S. 75 (1998), the Supreme Court removed another barrier when it held that a plaintiff could state a Title VII claim where sexual harassment was perpetrated by a person of the same sex.
Based on these Supreme Court decisions, courts across the country have held that LGBT people may be entitled to protection under Title VII. For example, in Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002), the district court denied summary judgment for an employer in a Title VII suit brought by a lesbian employee. The plaintiff presented evidence that throughout her employment, her female supervisor made disparaging and harassing comments based on gender stereotypes, including: “Oh, I thought you were a man”, “Do you wear the dick in the relationship?” and, “I thought you wore the pants.” In ruling in favor of the employee, the court relied upon a recent Ninth Circuit case— Nicholas v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001)—abrogating its earlier decision in DeSantis and holding that a male employee is entitled to redress under Title VII if he can prove that he was discriminated against for failing to comport with stereotypical notions of how men should appear and behave. Similarly, a concurring opinion in the en banc decision Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002), revived a Title VII claim brought by a gay male plaintiff who had presented evidence that his former coworkers taunted him by calling him feminine names and endearments, and ridiculed him for walking in a feminine manner.
With respect to transgender people, courts have similarly held that if a transgender person is targeted for failing to conform to stereotypes about how men and women are expected to appear and behave, they may be protected under Title VII. In Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), the plaintiff was a transgender prisoner who sued under the Gender Motivated Violence Act after being assaulted by a guard. Relying on the old case law on this issue, including Ulane, the guard argued that sex discrimination laws do not protect transgender people. The Ninth Circuit rejected this argument, holding that the “initial judicial approach taken in cases such as Holloway [and Ulane] has been overruled by the logic and language of Price Waterhouse.” Id. at 1201. The court concluded that “[d]iscrimination because one fails to act in the way expected of a man or a woman is forbidden under Title VII,” and that a transgender person who is targeted on this basis is entitled to protection.
Forty years after the passage of the Civil Rights Act of 1964, there is still no explicit federal protection for LGBT employees. In at least some circumstances, however, courts are increasingly finding that LGBT employees are entitled to protection under Title VII.
