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LGBT, the EEOC, and the Meaning of “Sex”

Labor and Employment Law

For half a century, Title VII’s prohibition on sex discrimination has been applied almost exclusively to disparities between women and men. A new decision by the Equal Employment Opportunity Commission (EEOC), Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015),1 extends Title VII’s protections to cover sexual orientation for federal sector employees and may lead the way for courts to recognize similar protections in the private sector. The EEOC also now maintains that gender identity is protected by Title VII,2 and some courts have agreed.

This article first examines the history and background of LGBT and sexual orientation discrimination in the workplace, including recent arguments, decisions, and proposed legislation regarding this issue, as well as a brief summary of current state and local protections. Second, this article delves into the reasoning and analysis behind Foxx and the EEOC’s current interpretation of Title VII. Lastly, this article discusses the possible impact of Foxx and whether federal courts will follow the EEOC’s interpretation of Title VII and apply it to the private sector.

History of Employment Discrimination against LGBT Individuals
There has been a long history of discrimination against members of the LGBT community in various facets of life. The most publicized and arguably the most important recent issue has been the federal ban on gay marriage, which deprived many LGBT persons of what the U.S. Supreme Court has now recognized as their fundamental constitutional right to marriage.3 Workplace discrimination has been cited as another major obstacle for members of the LGBT community. There may be 7 million private sector LGBT employees, 1 million state and local LGBT employees, and 200,000 LGBT employees of the federal government.4 Studies have concluded that “[e]mployment discrimination against gay, lesbian, and bisexual persons has a long history of acceptance,”5 and there are high levels of discrimination against LGBT persons at their places of employment.6

The Williams Institute7 conducted a comprehensive study on employment discrimination against LGBT individuals, in which they aggregated data collected from many surveys. Some specific findings include:

• In 2008, 37.7 percent of LGB respondents stated that they were subjected to some form of discrimination in the workplace.8

• In 2011, 78 percent of respondents to the largest survey of transgender people reported experiencing some form of harassment or mistreatment at work because of their gender identity.9

• In 2011, 20 percent reported having lost a job, 39 percent reported that they were not hired for positions they had applied for, and 17 percent of respondents reported being denied a promotion because of their LGBT status.10

• In a study conducted from 2005 to 2010, 10 percent to 28 percent of respondents reported that they received negative or unsatisfactory performance evaluations because of their LGBT status.11

While one might question the accuracy of this data and the magnitude of LGBT discrimination, it seems clear that discrimination has existed and continues to exist.

Historically, however, it has been less clear whether existing laws protected LGBT individuals from employment discrimination. In the past, even the EEOC took the position that gender identity and sexual orientation were not protected classes under Title VII.12 The Americans with Disabilities Act (ADA) expressly excludes “homosexuality,” “bisexuality,” “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments” from its definition of “disability,” and hence excludes persons with those traits from its protections.13

State and Local Protections
Until recently, state and local laws prohibiting employment discrimination generally mirrored federal laws in terms of the classes they protected. Thus, while sex discrimination was universally prohibited, statutes and ordinances did not expressly prohibit discrimination based on sexual orientation or gender identity. This is changing. There is a growing trend at the state and local levels to protect LGBT workers from employment discrimination. Twenty-two states and the District of Columbia have some sort of protection against discrimination in employment based on sexual orientation.14 The majority of these statewide employment nondiscrimination laws also cover gender identity.15 In addition, many local governments provide their own protections against employment discrimination on the basis of sexual orientation, gender identity, or both.16 At least 200 cities and counties have enacted legislation that prohibits both public and private employers from discriminating on the basis of sexual orientation.17 However, a majority of states and municipalities do not have these protections, leaving their citizens to rely on federal law for protection from LGBT discrimination in the workplace.

LGBT Discrimination in Federal Courts
Title VII of the Civil Rights Act of 1964 established that “it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”18 For a quarter of a century after Title VII was enacted, there seemed to be little thought that the prohibition on sex discrimination might extend to sexual orientation discrimination or gender identity discrimination; as mentioned above, even the EEOC rejected the proposition. Even today, the U.S. Supreme Court has never directly ruled on whether sexual orientation is protected under Title VII. Many federal courts have rejected employment discrimination claims based on sexual orientation and gender identity because those are not explicitly listed as protected classes under Title VII.19 As a result, an individual who claimed discrimination because of sexual orientation or LGBT status often had no recourse under federal law. However, two U.S. Supreme Court cases laid the foundation for at least some extension of Title VII’s protections to LGBT individuals.

Price Waterhouse v. Hopkins — In 1989, the Supreme Court held that gender stereotyping is actionable as sex discrimination under Title VII.20 In Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), the plaintiff was denied a promotion because her employer felt she needed to be more feminine. She was advised that she could improve her chances for promotion if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”21 A plurality agreed that Title VII prohibits “not just discrimination because of biological sex, but also gender stereotyping — failing to act and appear according to expectations defined by gender.”22 including gender stereotypes under “sex” in Title VII, this decision was a deviation from the traditional view on this issue and expanded Title VII’s protections.

Price Waterhouse arguably opened the door for claims that discrimination based on sexual orientation constituted prohibited “sex” discrimination under Title VII. Gender stereotyping refers to the “societal norms” associated with one’s gender, e.g. (some would say), men should be masculine; women should shave their legs; men should not walk in a certain way; and members of one sex should be romantically attracted only to members of the other sex. Many scholars and LGBT rights activists have argued that the notion of discriminating against a man or woman for being sexually and emotionally attracted to the same sex is exactly the same as the gender stereotyping that Price Waterhouse held is “sex” discrimination under Title VII. Accordingly, LGBT plaintiffs throughout the country have used Price Waterhouse to argue that discrimination on the basis of their sexual orientation is discrimination based on gender stereotypes and norms, and, thus, violates Title VII.23 Historically, those arguments have had little success in courts.

Oncale v. Sundowner Offshore Services — In 1998, the Supreme Court unanimously ruled that same-sex sexual harassment may be actionable under Title VII.24 In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the plaintiff worked as part of an eight-man crew on an offshore oil platform in the Gulf of Mexico. On several occasions, the other male crew members subjected him to humiliating sex-related actions, physical assault, and even threatened to rape him.25 The plaintiff complained to his supervisors, but to no avail.26 He eventually resigned and then filed suit against the company claiming sexual harassment under Title VII.27 Both the district court and the U.S. Court of Appeals for the Fifth Circuit held that there could not be a claim for sexual harassment because the alleged harassers and the alleged victim were of the same sex.28

The Supreme Court reversed.29 The Court reasoned that there is no justification or precedent for a categorical rule that harassment of a person of the harasser’s sex can never constitute harassment because of sex in violation of Title VII.30 The Court compared same-sex sexual harassment to same-race racial discrimination in the workplace, noting that the latter has been held to be prohibited by Title VII.31 According to the Court, “[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against members of their group.”32 Oncale also made it clear that sexual desire is not necessary to find discrimination based on sex, including same-sex sexual harassment.33 Addressing an issue that continues to pervade LGBT employment discrimination litigation, the Court commented that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”34

There is a caveat to the Oncale holding. As the court in Bibby v. Philadelphia Coca Cola Bottling Company, 260 F. 3d 257, 262 (3d Cir. 2001), noted, to be actionable under Oncale samesex sexual harassment still has to be “because of sex.”35 Under Oncale, there are three common situations when same-sex sexual harassment can be “because of sex”:36 First, when there is evidence that the harasser sexually desires the victim;37 second, when there is no sexual attraction, but when the harasser displays hostility to the presence of persons of a particular sex in the workplace;38 and third, in circumstances akin to the type of gender stereotyping found in Price Waterhouse.39

Sexual Orientation Claims after Price Waterhouse and Oncale— Despite Price Waterhouse and Oncale, plaintiffs alleging discrimination based on sexual orientation continue to have difficulty convincing courts that their claims are viable under Title VII. For example, in Simonton v. Runyon, 232 F. 3d 33, 35 (2d. Cir. 2004), a gay, male employee was repeatedly sexually harassed by his fellow co-workers because of his sexual orientation.40 The alleged harassment was morally reprehensible and extreme; plaintiff claimed it caused him to suffer a heart attack.41 The Simonton court, like many other federal courts, considered both Price Waterhouse and Oncale, but still concluded on the specific facts that the claims were not cognizable under Title VII.42 Simonton emphasized that Price Waterhouse’s gender stereotyping analysis would not allow plaintiffs to “bootstrap” all sexual orientation discrimination cases under Title VII because not all homosexual men are stereotypically feminine and not all heterosexual men are stereotypically masculine.43 Simonton is just one example of many cases throughout the country in which plaintiffs have argued that discrimination based on sexual orientation is “sex” discrimination under Title VII, and courts have disagreed.44

The “T” in LGBT — Prior to Price Waterhouse, transgender plaintiffs faced the same problems as gay, lesbian, and bisexual plaintiffs in having their claims recognized under Title VII.45 Most courts rejected claims that discrimination based on transgender status violated Title VII’s prohibition on “sex” discrimination. Many federal courts construed the term “sex” to refer to an individual’s anatomical and biological characteristics, while interpreting “gender” to refer to the socially constructed norms associated with a person’s sex.46 Courts viewed discrimination based on transsexual status as a gender issue, and, thus, not pertaining to “sex” under Title VII.47 This analysis was arguably inconsistent with Price Waterhouse, which recognized Title VII claims based on gender stereotyping.48 Moreover, the “no bootstrap” analysis the Simonton court applied when analyzing a sexual orientation claim does not apply nearly as well to a gender identity claim, given the rationale of Price Waterhouse.

Consequently, plaintiffs have been more successful bringing transgender discrimination claims than bringing claims based solely on sexual orientation discrimination. For example, in 2011, the U.S. Court of Appeals for the 11th Circuit, in a case under the Equal Protection Clause, held that “discrimination against a transgender individual because of her gender non-conformity is sex discrimination…whether it’s described as being on the basis of sex or gender.”49 The EEOC now agrees, and in Macy v. Holder, EEOC Appeal No. 01201200821, 2012 WL 1435995 at *1 (EEOC Apr. 20, 2012),held that claims of discrimination based on “gender identity, change of sex, and/or transgender status” are recognizable under Title VII.50

A Note on the Issue of Congressional Intent — Federal courts that have refused to extend Title VII’s protections to discrimination based on LGBT status often note that the term “sex” refers to one’s membership in a class delineated by gender, not to sexual orientation, and express concerns about overstepping their boundaries by legislating from the bench, pointing to the absence of any reference in Title VII to sexual orientation or gender identity.51 Congress has repeatedly rejected legislation that would have expressly prohibited employment discrimination based on sexual orientation,52 and in the view of some courts, “Congress’s refusal to expand the reach of Title VII is strong evidence of congressional intent in the face of consistent judicial decisions refusing to interpret ‘sex’ to include sexual orientation.”53 One also might argue that Congress’ express exclusion of “homosexuality,” “transsexualism,” etc., from the ADA’s definition of “disability” is informative on the issue of congressional intent although, of course, whether a trait is a “disability” is a different question from whether the trait is, or should be, protected by law.

LGBT workers and the EEOC argue that congressional action is not required because discrimination based on LGBT status is already covered by Title VII. They point out that the Supreme Court has held that “[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.”54 Further, when Price Waterhouse established that gender stereotyping fell under Title VII, it did so under the umbrella of Title VII’s prohibition on sex discrimination; it was not necessary for Congress to add a new protected class, “masculine women,” to Title VII.55 Similarly, “when ruling under Title VII that discrimination against an employee because he lacks religious beliefs is religious discrimination, the courts did not thereby create a new Title VII protected class of ‘non-believers.’”56

The Employment Non-Discrimination Act — The proposed Employment Non-Discrimination Act (ENDA); would prohibit employment discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity in the workplace.57 ENDA was envisioned to be a defining step, if not the final step, in the LGBT community’s struggle to secure equal rights in the workplace. Some version of ENDA has been introduced to Congress in every session since 1994. In 2013, the U.S. Senate finally passed ENDA, however, 80 percent of the House of Representatives voted against ENDA’s passage. Perhaps ironically, ENDA is predicated on the notion that Title VII does not apply to LGBT status. Given ENDA’s history, the outcry in some quarters over the Supreme Court’s recent recognition of gay marriage, and the conservative majorities in both houses of Congress, it does not seem likely that ENDA will be enacted any time soon. Developments in Title VII jurisprudence may make that issue moot.

Baldwin v. Foxx: The EEOC Opinion that Could Change Everything
There is a simple formulation that results in a compelling, and logical, argument for the proposition that discrimination based on LGBT status is discrimination based on sex. In retrospect, it is surprising that the argument did not long ago carry the day. Perhaps the reason is that litigants, and hence courts, have tended to frame the issue in terms of whether sex, gender, and sexual orientation are the same thing, rather than focusing on the motivation that drives discrimination against LGBT applicants and employees (it is difficult to understand why this tendency persisted post-Price Waterhouse and post-Oncale).

In Foxx, the EEOC has now done an admirable job of framing the argument. The complainant, Baldwin, worked for the Department of Transportation (agency) as a supervisory air traffic control specialist.58 Baldwin complained to the EEOC that the agency had denied him a promotion because of his sexual orientation.59 Baldwin alleged that, in the past, his supervisor had made several negative remarks about his sexual orientation.60 This same supervisor was heavily involved in the agency’s decision-making process to fill the position that Baldwin sought.61 The EEOC held that the agency violated Title VII by discriminating against Baldwin because of his sexual orientation. The EEOC based its opinion on three separate conclusions: 1) sex and sexual orientation are inseparable; 2) discrimination based on sexual orientation constitutes “associational discrimination”; and 3) sexual orientation discrimination is gender stereotyping.62

Sex and Sexual Orientation Are Inseparable — According to the EEOC, there cannot be sexual orientation discrimination without the victim’s sex being a factor that makes a difference in the discrimination. “It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based discriminations.”63 This conclusion is premised on the fact that it is impossible to determine whether a person is gay or straight without directly considering that person’s sex. The EEOC proffered a test for determining whether sex was a factor in an adverse employment action: If the harasser or discriminator would have acted differently if the gender of the victim was different, then the adverse action was based on “sex,” and, thus, classifies as sex discrimination under Title VII.64 The EEOC provided the following example to help illustrate this point: An employer who disciplines a female for having a picture of her female spouse on her desk, but does not discipline a male for having a picture of his female spouse on his desk has treated the female less favorably because of her sex, and, therefore, has violated Title VII’s prohibition on sex discrimination.65

Discrimination Based on Sexual Orientation Constitutes Associational Discrimination — In Foxx, the EEOC proclaimed that sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex.66 This theory is based on the general concept that Title VII treats all of the enumerated protected categories — race, color, religion, sex, and national origin — exactly the same,67 and on the fact that courts and the EEOC have consistently held that discrimination against an employee based on association with a person of another race, such as an interracial marriage or friendship, is race discrimination under Title VII.68 The reasoning for this is because “an employment action based on an employee’s relationship with a person of another race necessarily involves consideration of the employee’s race,69 and, thus, constitutes discrimination because of the employee’s race.”70 Since all protected classes are treated equally under Title VII, the EEOC has applied this same associational discrimination concept to sexual orientation discrimination. To illustrate, if an employer discriminates against a female employee because of her sexual orientation, it is discriminating against her because she is a female in a relationship with a female (assuming, of course, the existence of such a relationship). If the employer does not also discriminate against a male because the male is in a relationship with a female, then the discrimination is, by definition, because of sex. The proposition seems so simple that the dearth of caselaw supporting it is somewhat surprising.

Sexual Orientation Discrimination is Gender Stereotyping — In Foxx, the EEOC ruled that sexual orientation discrimination is sex discrimination because it is based on gender stereotyping.71 This is the same argument that LGBT plaintiffs have used unsuccessfully for years.72 Originally, Price Waterhouse allowed an LGBT individual to bring a claim of gender stereotyping under Title VII if such individual demonstrated that he or she was being treated adversely because he or she was viewed as insufficiently “masculine” or “feminine.”73 The EEOC noted that gender stereotyping eventually started to become applicable to more than just these assumptions regarding masculine or feminine behavior.74 For example, instead of harassing a male for being feminine, a harasser could discriminate against an openly gay, and masculine, employee because he thinks “real men” should date women.75 This theory has occasionally been accepted by courts. In Koren v. Ohio Bell Telephone Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012), a gay, male employee chose to take his spouse’s surname — a traditionally feminine practice — and his co-workers and supervisors refused to call him by his married name.76 The Koren court ruled that this was gender stereotyping under Price Waterhouse and not simply an attempt by the plaintiff to “bootstrap” his sexual orientation claim to Title VII.

Traditionally, a plaintiff hoping to succeed on a claim of gender stereotyping has been required to show that he or she failed to act and/or identify with his or her gender.77 The concept of discriminating against an employee because he or she is not a “real man” or a “real woman” seems to be the essence of what Price Waterhouse was attempting to abolish. As the Price Waterhouse Court stated, “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”78 The EEOC contends that, in the past, the courts have failed to view claims of discrimination by gay, lesbian, and bisexual plaintiffs in this straightforward manner, and, thus, have failed to afford to LGBT individuals the protections embodied in Title VII and recognized by Price Waterhouse.79 The EEOC points out that many courts have made bare conclusions that discrimination based on sexual orientation is not gender stereotyping by merely citing past case precedent and offering no further explanation or reasoning on the issue.80

The Aftermath of Foxx and the Future of LGBT Rights in the Workplace
The Foxx opinion is a victory for LGBT plaintiffs, however, the full significance of the decision is yet to be determined. A decision by the EEOC is final and binding on the agency, so unless and until the EEOC changes its perspective, discrimination by a federal agency based on LGBT status is unlawful. 81 However, a large majority of the workforce is employed in the private sector, and neither the Foxx ruling nor the EEOC’s other opinions on this matter are binding in the private sector.

Guidance from the EEOC concerning interpretation of Title VII will be considered by federal courts as persuasive, but not controlling, authority.82 Foxx’s rationale is straightforward and compelling. One might ponder how courts would have reacted in 1965 had the EEOC provided similar guidance shortly after Title VII’s enactment and the EEOC’s creation. Fifty years ago, there was no body of caselaw interpreting Title VII, but also little support for LGBT rights. 2015, there has been a sea of change in public (and private) opinions concerning LGBT rights, but there is now a substantial body of caselaw rejecting sexual orientation discrimination claims under Title VII.83 This begs the question: “What impact will Foxx have on court decisions in the private sector?”

Almost two months after Foxx, a federal district court in Florida denied a plaintiff’s motion for reconsideration of her Title VII gender stereotyping claim based on sexual orientation discrimination.84 The plaintiff argued that Foxx constituted an intervening change of law. In denying this motion, the Burrows court first set out the general standard for reconsideration based on a change of law, which requires “an intervening change in controlling law.”85 The court then reasoned that while the EEOC’s opinion in Foxx is relevant as persuasive authority, “[u]ntil the Supreme Court or [11]th Circuit recognizes the opinion expressed in the EEOC’s decision as the prevailing legal opinion, the Court declines to reconsider in light of the EEOC’s decision.”86

In another recent case, after a jury verdict in favor of the plaintiff in a hostile work environment sexual harassment claim based on sexual orientation under the New York City Human Rights Law, the defendant moved for judgment as a matter of law. 87 A federal district court, quoting a large portion of Foxx in its opinion, denied the defendant’s motion.88 Although the claim was not technically under Title VII, it is still a positive sign for LGBT plaintiffs that a federal court used Foxx in support of its decision to permit a sexual orientation discrimination claim.

Three things seems certain. First, the law has changed for federal sector employers and employees. Second, Foxx will lead to more discrimination claims being filed against private sector employers by plaintiffs alleging discrimination based on LGBT status. Third, courts will be called upon to reconsider established precedent. It is much less certain that Foxx will cause a significant change in protection against LGBT discrimination in the private sector. Time will tell.

1 Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 at *10.

2 See EEOC Field Memorandum, Feb. 3, 2015, available at See also Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) (claim alleging discrimination based on gender identity and transgender status cognizable under Title VII).

3 Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (“[T]he Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all [s]tates.”).

4 The Williams Institute, Estimates of LGBT Public Employees, See also note 7.

5 See Robin C. Miller, Federal and State Constitutional Provisions as Prohibiting Discrimination in Employment on Basis of Gay, Lesbian, or Bisexual Orientation or Conduct, 96 A.L.R. 5th 391 (originally published in 2002).

6 Brad Sears & Christy Mallory, Documented Evidence of Employment Discrimination and Its Effects on LGBT People, The Williams Institute at 11 (July 2011), available at See also note 7.

7 The Williams Institute describes itself as “a national think tank at UCLA Law,” “dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.” See UCLA Law, Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy,

8 Sears & Mallory, Documented Evidence of Employment Discrimination and Its Effects on LGBT People, The Williams Institute at 1.

9 Id. at 2.

10 Id. at 7.

11 Id. at 6.

12 Smith v. Dep’t of the Navy, EEOC DOC 01841291, 1986 WL 635944 at *2 (July 2, 1986) (“[T]he Commission interprets the statutory phrase ‘discrimination based on…sex’ in accordance with its plain meaning, to connote discrimination because of gender, and not because of gender orientation.”) (citation omitted); Equal Employment Opportunity Comm’n, EEOC Dec. No. 75-30, 12 Fair Empl. Prac. Cas. (BNA) 1355 (E.E.O.C.), EEOC Decisions (CCH) ¶6499, 1974 WL 3872 (Sept. 24, 1974) (“Absent evidence of a Congressional intent to the contrary, we interpret the phrase ‘discrimination because of sex,’ in accordance with its plain meaning, to connote discrimination because of gender. We therefore are compelled to conclude that [c]harging [p]arty’s termination, based in part upon having undergone a sex reassignment operation, does not constitute discrimination because of sex.”) (footnotes omitted).

13 42 U.S.C.A. §12211.

14 The 22 states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Stephanie Rotondo, Employment Discrimination Against LGBT Persons, 16 Geo. J. Gender & L. 103, 104 (2015) (listing 21 of the states and their respective statutes that protect against sexual orientation discrimination in the workplace); Antidiscrimination and Religious Freedom Amendments, 2015 Utah Laws Ch. 13 (S.B. 296) (effective May 12, 2015).

15 American Civil Liberties Union, Non-Discrimination Laws: State by State Information – Map, New Hampshire, New York, and Wisconsin’s statewide employment nondiscrimination law covers sexual orientation, but not gender identity.

16 Roberts v. United Parcel Service, Inc., No. 13-CV-6161, 2015 WL 4509994 at *18 (E.D. N.Y. July 27, 2015).

17 Id. at *18.

18 42 U.S.C.A. §§2000e, et seq.

19 See, e.g., Ulane v. Eastern Airlines, 742 F.2d 1031 (7th Cir. 1984) (discrimination based on gender identity is not sex discrimination); Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) (discrimination based on sexual orientation is not sex discrimination).

20 Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), superseded by statute, on unrelated grounds, as stated in Burrage v. U.S., 134 S. Ct. 881, 889 n. 4 (2014).

21 Id. at 235.

22 Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).

23 Rotondo, Employment Discrimination Against LGBT Persons, 16 Geo. J. Gender & L. at 109.

24 Oncale v. Sundowner Offshore Services, 523 U.S. 75, 79-80 (1998).

25 Id. at 77.

26 Id.

27 Id.

28 See Oncale v. Sundowner Offshore Serv., In c., No. 94-1483, 1995 WL 133349 at *2 (E.D. La. Mar. 24, 1995); Oncale v. Sundowner Offshore Serv., Inc., 83 F. 3d 118, 120-21 (5th Cir. 1996).

29 Oncale, 523 U.S. at 82. The plaintiff in Oncale eventually settled with his employer on remand. Edward J. Reeves & Lainie D. Decker, Before ENDA: Sexual Orientation and Gender Identity Protections in the Workplace under Federal Law, 20 Law & Sexuality 61, 67 (2011).

30 Oncale, 523 U.S. at 75.

31 Id. at 78.

32 Id. (quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)).

33 See id. at 79-80.

34 Id. at 79.

35 Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2000).

36 Id. at 262-63.

37 Id. For example, if a supervisor is treating a subordinate in a way that is sexually charged.

38 Id. For example, a male doctor might believe that nurses should only be female, leading him to make harassing statements to a male nurse.

39 Id. at 263 (citing Simonton v. Runyon, 232 F.3d 33, 37-38 (2d Cir. 2004) (discussing the theory but declining to rule on it because the plaintiff had not raised it before the district court)).

40 Simonton, 232 F.3d at 35.

41 Plaintiff’s co-workers, inter alia, called him vulgar names (e.g., “faggot”), taped male pornographic pictures to his work area, and stated to others that he suffered a mental disorder. Id.

42 Simonton, 232 F.3d at 36.

43 Id. at 37. Simonton differentiates gender stereotyping from sexual orientation and holds that the former is cognizable under Title VII, while the latter is not.

44 See, e.g., Hamner v. St. Vincent Hospital and Health Care Center, Inc., 224 F. 3d 701, 707-08 (7th Cir. 2000) (harassment based on sexual orientation is not sexual harassment protected under Title VII); Riser v. Haggar Clothing Co., No. 3:95-CV-3129-G, 1997 WL 361644 at *1 (N.D. Tex. June 25, 1997) (plaintiff “failed to establish a prima facie case of sexual harassment under Title VII because the Fifth Circuit has held that Title VII does not protect against discrimination based on sexual orientation”); Kay v. Independence Blue Cross, 142 Fed. Appx. 48, 51 (3d Cir. 2005) (affirming summary judgment dismissing a plaintiff’s sexual harassment claim because the alleged harassment was motivated by the plaintiff’s sexual orientation, which is not a protected class under Title VII).

45 Rotondo, Employment Discrimination Against LGBT Persons, 16 Geo. J. Gender & L. at 112, n. 3.

46 See, e.g., Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F. 2d 748, 750 (8th Cir. 1982).

47 See Holloway v. Arthur Anderson & Co., 566 F. 2d 659, 661-63 (9th Cir. 1977).

48 See Schwenk v. Hartford, 204 F. 3d 1187, 1201 (9th Cir. 2000) (“[T]he initial judicial approach taken in cases such as Holloway [and Ulane] has been overruled by the logic and language of Price Waterhouse.”).

49 Glenn, 663 F. 3d at 1317.

50 Macy v. Holder, EEOC No. 0120120821, 2012 WL 1435995 at *1 (E.E.O.C. Apr. 20, 2012).

51 See, e.g., Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir. 1979).

52 See, e.g., Employment Nondiscrimination Act of 1996, S.2056, 104th Cong. (1996); Employment Nondiscrimination Act of 1995, H.R. 1863, 104th Cong. (1995); Employment Nondiscrimination Act of 1994, H.R. 4636, 103d Cong. (1994).

53 Simonton, 232 F. 3d at 35.

54 Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (citations omitted) (internal quotation marks omitted).

55 Foxx, 2015 WL 4397641 at *9 (citing Price Waterhouse, 490 U.S. at 239-40).

56 Id. (citing EEOC v. Townley Eng’g & Mfg. Co., 859 F. 2d. 610, 621 (9th Cir. 1988)).

57 Alex Reed, Abandoning ENDA, 51 Harv. J. on Legis. 277, 278 (2014).

58 Foxx,2015 WL 4397641 at *1.

59 Id.

60 Id. at *2.

61 Id.

62 Id. at *10.

63 Id. at *5.

64 Id. at *6 (citing Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002)).

65 Id. at *5.

66 Id. at *6.

67 Id. at *7 (citing Price Waterhouse, 490 U.S. at 243 n.9 (“[O]ur specific references to gender throughout this opinion, and the principles we announce, apply with equal force to discrimination based on race, religion, or national origin.”)).

68 Foxx, 2015 WL 4397641 at *6; see generally Schroer v. Billington, 577 F. Supp. 2d 293, 307 n.8 (D.D.C. 2008).

69 There is a flaw in the logic when this argument is applied to race because an employer could, for example, look with equal disfavor upon all employees who associate with a member of the disfavored race, regardless of the employee’s race. The race of the employee may — but may not — matter. The logic actually applies much better to sexual orientation, where the very reason for the unfavorable treatment is because the employee and the associate are of the same sex, i.e., the employee’s sex absolutely matters.

70 Foxx, 2015 WL 4397641 at *6.

71 Id. at *7.

72 See Simonton, 232 F. 3d at 37-38.

73 Foxx, 2015 WL 4397641 at *7.

74 Id. at 8-9.

75 See Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002).

76 Foxx, 2015 WL 4397641 at n. 9 (citing Koren v. Ohio Bell Telephone Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012)).

77 Vickers v. Fairfield Med. Ctr., 453 F. 3d 757, 764 (6th Cir. 2006).

78 Price Waterhouse, 490 U.S. at 251.

79 Foxx, 2015 WL 4397641 at *8.

80 Id.

81 See 29 C.F.R. §1614.110.

82 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975); Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141-42, superseded by statute on other grounds as recognized in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 88-89 (1983).

83 Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 722 (2014).

84 Burrows v. The College of Central Florida, No. 5:14-cv-197-OC-30PRL, 2015 WL 5257135 at *2 (M.D. Fla. Sept. 9, 2015).

85 Id. at *1 (emphasis added).

86 Id. at *2.

87 Roberts, 2015 WL 4509994 at *16-18.

88 Id. at *26.

Shane T. Muñoz is with FordHarrison, a national labor and employment law firm. He is certified by The Florida Bar in labor and employment law and is a fellow of the College of Labor & Employment Lawyers.

David M. Kalteux is an associate with FordHarrison, a national labor and employment law firm. He focuses his practice on representing employers in labor and employment matters throughout Florida.

This column is submitted on behalf of the Labor and Employment Law Section, Frank E. Brown, chair, and Robert Eschenfelder, editor.

Labor and Employment Law