UPDATE: Sexual Orientation, Gender Norms, and Title VII

Within the Eleventh Circuit Court of Appeals, which covers Florida, Georgia, and Alabama, discrimination on the basis of gender non-conformity remains a viable claim under Title VII of the Civil Rights Act of 1964.

On March 10, 2017, the Eleventh Circuit ruled in Jameka K. Evans v. Georgia Regional Hospital, et al., that Title VII, which prohibits discrimination on the basis of “sex,” does not prohibit discrimination on the basis of sexual orientation. The Court affirmed the district court’s dismissal of the pro se plaintiff’s claim that she was illegally discriminated against because she was a lesbian. Most of the reporting on the Evans decision has focused on this portion of the ruling.

However, the Court of Appeals reversed the district court’s dismissal with prejudice of the plaintiff’s claim that she was subjected to illegal sex discrimination because she failed to conform to traditional gender norms. Although the Eleventh Circuit ruled that the plaintiff failed to plead enough facts to state a plausible gender non-conformity claim, it nevertheless directed the district court to allow her to attempt to re-plead it with more factual detail. As to the difference between gender-norm discrimination and sexual orientation discrimination, the Eleventh Circuit ruled that gender non-conformity falls squarely within Title VII’s prohibition of sex discrimination, and it cannot be viewed as just another way to plead sexual orientation discrimination, as follows:

Discrimination based on failure to conform to a gender stereotype is sex-based discrimination. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-5(g)(2)(B) (1991), as stated in Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). Specifically, in Glenn, we held that discrimination against a transgender individual because of gender-nonconformity was sex discrimination. 663 F.3d at 1317 (applying gender-nonconformity sex discrimination in a 42 U.S.C. § 1983 action). In that decision, we stated that “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” and we reasoned that, because those protections apply to everyone, a transgender individual could not be excluded. Id. at 1318-19. We hold that the lower court erred because a gender non-conformity claim is not “just another way to claim discrimination based on sexual orientation,” but instead, constitutes a separate, distinct avenue for relief under Title VII.
Accordingly, we vacate the portion of the district court’s order dismissing Evans’s gender non-conformity claim with prejudice and remand with instructions to grant Evans leave to amend such claim.

Evans v. Georgia Regional Hospital, et al., at pp. 11-12.

The similarities between sexual orientation and gender non-conformity has been a hot issue in recent sex discrimination cases, with some courts finding that there is essentially no difference between the two. As we have previously written:

  • According to the United States District Court for the Western District of Pennsylvania, “discrimination based on sexual orientation constitutes sex stereotyping prohibited by law.” See Order Denying Motion to Dismiss, Equal Employment Opportunity Commission v. Scott Medical Health Center PC, Case No.  2:16-cv-00225 (W.D. Pa. Nov. 4, 2016).
  • However, according to the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, sexual orientation discrimination does not violate Title VII, whereas gender non-conformity discrimination does. The Seventh Circuit thought that the distinction between the two was so slight that it would eventually lead to the erosion of the barrier to sexual orientation discrimination claims.

In a recent press conference, Law360 reports that the EEOC has stated that it will continue pursuing cases under Title VII for sex discrimination based on both sexual orientation and gender non-conformity. With minor exceptions, President Trump’s administration has expressed the same enforcement goals under Title VII as President Obama.

We have previously written about this issue here: https://freedhoward.com/the-ivy-tech-decision-puts-sexual-orientation-discrimination-back-on-the-table-right-wrong/

Companies with more than 15 employees are advised to investigate and take corrective action under their sexual harassment policy when employees report discrimination on the basis of their sexual orientation and/or gender non-conformity. Even if your employee phrases their complaint in terms of sexual orientation and does not use the words “gender non-conformity,” your company should consider investigating and taking corrective action on both bases.

If you would like to speak about updating your EEO/Discrimination/Harassment policies based on the current state of the law, please feel free to call (404.849.0394) or write (beau@freedhoward.com). We would be happy to consult with you free of charge to determine whether we can be of assistance.

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