Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on protected characteristics such as sex. It applies to employers around the country with at least 15 employees. There is no express prohibition against sexual orientation or gender identity discrimination in Title VII. However, under Title VII, an employer engages in improper consideration of sex in employment practices when sex is a motivating reason for any employment practice, regardless of whether the employer was also motivated by other factors.
However, the Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII. It has taken the position that sexual orientation discrimination and gender identity discrimination against LGBTQ job applicants and employees is a subset of sex discrimination, and therefore it comes under the aegis of Title VII. For example, the EEOC would find that a covered employer that fails to hire an applicant because he is a transgender man is a Title VII violation. Similarly, the EEOC would find that harassing an employee because she is transitioning is a Title VII violation. For another example, refusing to promote an employee and giving him a lower salary because he is gay would also be a Title VII violation under the EEOC guidelines. Another violation could involve denying spousal health benefits to an employee’s same-sex partner, while providing spousal health benefits to an employee with an opposite-sex partner.
The EEOC interpretation applies existing Title VII precedent to the sex discrimination claims of LGBTQ workers. It is consistent with a Supreme Court case in which the Court held that employment decisions motivated by sex stereotyping constitute illegal sex discrimination. This line of argumentation stems from the proposition that employers are not allowed to discriminate against men or women who do not conform to traditional gender norms. As the US Court of Appeals for the Second Circuit put it in one case: “Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.”
Courts have also built on other case law that prohibits discrimination on the basis of an employee’s association with people of a certain protected group. When applying such precedents to sexual orientation discrimination, some federal courts have reasoned that sexual orientation discrimination is based on stereotypes or assumptions about how people of a particular gender should behave, including to whom they should feel attraction.
However, not all courts agree with the EEOC interpretation of Title VII. This is an issue over which lower federal courts have split for years. Appellate courts also disagree. Moreover, the United States Justice Department has filed an amicus brief in a case concerning sexual orientation discrimination, arguing that Title VII does not protect against employment discrimination arising out of a worker’s sexual orientation.
States that do not have express state law protections against gender identity and sexual orientation discrimination, but are located in a federal circuit with a ruling that specifically interprets Title VII’s prohibition against sex discrimination as including discrimination based on sexual orientation or gender identity, currently include Alaska, Arizona, Idaho, Indiana, Ohio, Kentucky, Tennessee, Alabama, Georgia, Montana, and Florida.
In states and municipalities that have express prohibitions against LGBTQ discrimination, people with sexual orientation discrimination or gender identity discrimination claims may be able to obtain more effective relief by pursuing remedies under state or city law instead of Title VII. For example, in New York City, a transgender worker may be able to obtain better remedies for gender identity discrimination under the New York City Human Rights Law than under Title VII. This is because compensatory damages and punitive damages are capped based on the size of the employer under Title VII, but they are not capped under the city law.
