Free to Marry, Not Free to Work by Daniel A. Gwinn and Laura Bradshaw Tucker
…A Marriage Bed . . . But No Bank Account Balance
By Daniel A. Gwinn and Laura Bradshaw Tucker
GWINN TAURIAINEN PLLC
Wedding bells for same sex couples rang from sea to shining sea after the United States Supreme Court’s 2015 opinion in Obergefell v Hodges[i] became the law of the land. Title VII of the Civil Rights Act of 1964 confers equal employment opportunities without regard to “race, color, religion, sex, or national origin.”[ii] Whether Title VII’s prohibition on sex-based employment discrimination includes protection based on sexual orientation or gender identity has produced inharmonious results.[iii]
First, two years after Obergefell, Michigan’s lesbian, gay, bisexual and transgendered (LGBT) workers remain without federal or state protection against discrimination and harassment. Though free to marry and to have families, their ability to support their families free from workplace harassment can be arbitrarily denied. Marital injustice is remedied, but unequal treatment persists in the workplace.
Second, on April 4, 2017, in Hively v Ivy Tech Community College of Indiana,[iv] the Seventh Circuit was the first circuit to grant Title VII employment protections to LGBT plaintiffs. Other circuits, including the Sixth Circuit, disagree. Thus, the issue of whether Obergefell’s recognition that LGBT people are a protected class entitled to constitutional protection from state action should be extended to statutory employment rights is ripe for review by the United States Supreme Court.
Obergefell v Hodges
Obergefell v Hodges included several plaintiffs, each of whom told a story of injustice. James Obergefell of Ohio had lived with his partner Arthur for more than 20 years. When Arthur was diagnosed with Lou Gehrig’s disease, the couple vowed to marry before he died. But, to do so, they had to fly to Maryland, where same-sex marriage was legal. Since the ailing Arthur found it difficult to move, they were wed “inside a medical transport plane as it remained on the tarmac in Baltimore.”[v] Arthur died three months later. The state of Ohio refused to recognize the marriage; Obergefell was not even acknowledged as the surviving spouse on the death certificate of his husband and longtime love.
Other parties to Obergefell recounted equally compelling facts. Ijpe DeKoe served in the United States military in Afghanistan, but when he and his husband moved to Tennessee after his deployment, their union was not recognized. In Michigan, two nurses barred from marriage under Michigan law were prohibited from adopting children as a couple.[vi]
The Supreme Court recognized that the treatment of these plaintiffs violated their rights to equal protection and due process under the 14th Amendment. The right to marry is a fundamental liberty; same-sex couples are no less entitled to this right than their opposite-sex counterparts. The decision to marry, like “choices concerning contraception, family relationships, procreation, and childrearing … are among the most intimate that an individual can make,” the court said.[vii] The due process right “safeguards children and families.”[viii] The court stated marriage affords the permanence and stability important to a child’s best interests and is a keystone of our social order. And the equal protection clause, like the due process clause, prohibits an unjustified infringement of a fundamental right — the right to marry.
The Obergefell court acknowledged legalizing same-sex marriage was not the end of the discussion. “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty,” the Court stated.[ix] This prediction has proved accurate: LGBT people may no longer be outlaws, but remain outcasts, as demonstrated by their unequal rights in the workplace.
In 2015, more than 9,000,000 LGBT adults and 1,000,000 same-sex couples resided in the United States. (21,782 lived in Michigan).[x] According to the Williams Institute, an independent think tank at the UCLA Law School, employment discrimination against the LGBT workforce is common: 21 percent of LGBT workers reported being discriminated against in hiring, promotions, and pay.[xi] Across the country, same-sex couples with children earn approximately $7,600 less annually than their heterosexual counterparts, a number reduced to $4,300 in states with anti-discrimination laws, but rises to $11,300 in states without such protections.[xii] But the effects of employment discrimination against LGBT people go beyond dollars and cents, affecting compelling interests in preserving mental health, family structure, and social relationships.
Title VII and Case Law
Lack of protection from discrimination in the workplace stems from narrow judicial interpretation of Title VII, which was drawn to ensure employees and job applicants are judged based only on skills, qualifications, and performance. But as interpreted, this lofty goal is not uniformly applied to LGBT workers. Until Hively, courts declined to find Title VII protection for discrimination “because of …. sex” for claims of discrimination based on sexual orientation or gender identity.[xiii]
In 1989, the Supreme Court unexpectedly provided some LGBT plaintiffs a way to get their day in court. In the plurality opinion of Price Waterhouse v Hopkins,[xiv] the court held that discriminating against those who failed to adhere to a sexual stereotype in conformity with their biological gender is discrimination because of sex. The plaintiff in Price Waterhouse, a successful female associate at the well-known accounting firm, was denied promotion. The problem with heterosexual Ann Hopkins was not her work performance; the plain-spoken and assertive businesswoman was — apparently — insufficiently feminine. The partners at the firm advised her that her chances of promotion would improve if she would “wear makeup, have her hair styled, and wear jewelry.”[xv] Now, under Price Waterhouse, LGBT plaintiffs could analogize they were discriminated against because they were not stereotypical in their attire, mannerisms, or behavior for their biological gender, thus bypassing the prohibited argument that their discrimination or harassment was based on sexual orientation or gender identity.
This theory has had haphazard results. It requires LGBT plaintiffs to present themselves as “gay” stereotypes no less invidious than the traditional female stereotype at issue in Price Waterhouse to survive summary judgment.[xvi] A member of a protected class should not have to behave in a particular manner to be entitled to equal employment opportunities. However, without some visibly identifying stereotypical behavior or appearance at work, LGBT people remain vulnerable to unequal treatment under Title VII.
For example, in Vickers v Fairfield Medical Center,[xvii] the Sixth Circuit denied plaintiff’s request for relief under a sex gender stereotyping theory. When hospital security guard Christopher Vickers befriended an openly gay doctor at work, his co-workers jumped to the conclusion that Vickers must also be gay. As a result, Vickers’ colleagues subjected him to sexually based slurs, stamped his report forms with the word “FAG,” and defiled his food and personal property with irritants and chemicals.[xviii] There was no allegation that Vickers presented himself as gender non-conforming or “un-masculine.”
Vickers’ complaint against the hospital and his co-workers alleged he was harassed and discriminated against because his co-workers believed his sexual practices — whether real or imagined — did not conform to traditional stereotypes of how men behave. Real or “stereotypical” men have sex with women. Vickers was harassed because his friendship with the doctor led co-workers to believe Vickers engaged in sex with men. The Sixth Circuit denied his claim and held that employment discrimination based on sexual orientation, whether perceived or real, is not protected.[xix]
To establish a claim of failure to adhere to a sex gender stereotype, held the Vickers court, plaintiffs must exhibit behavior “stereotypically inappropriate for their gender.”[xx] The court rejected Vickers’ argument that homosexuality itself is a violation of gender stereotypes. To accept it would “have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination.”[xxi] The court reasoned that because Congress had not included sexual orientation in Title VII, sexual orientation was therefore specifically excluded. Vickers, decided in 2006, is still the law in the Sixth Circuit.
Vickers’ argument fared better in the district court for the District of Columbia in Terveer v Billington.[xxii] The plaintiff there, a “straight-acting” gay man, argued simply that he was a homosexual male “whose sexual orientation did not conform to the defendant’s gender stereotypes ….”[xxiii] But even while arguing that sexual orientation discrimination is included as discrimination because of sex under Title VII, the plaintiff in Terveer also relied on a sex gender stereotyping theory: nothing is less stereotypically masculine than having sex with another man.
The Terveer court’s expansive view of what constitutes a sex gender stereotype permitted LGBT people with imperceptible sexual orientation, as well as visibly effeminate gay men and masculine lesbians, to survive summary judgment. The Terveer court’s view, however, bore little resemblance to the outwardly visible stereotyping described in Price Waterhouse. In most cases where the sex gender stereotyping theory is argued, it wrongly presupposes that sexual orientation is consistently at odds with behavioral norms. The conflicting decisions under this theory expose the unreliable stereotypes upon which it precariously balances. The plaintiff in Terveer succeeded, like prevailing plaintiffs before him, because of his conduct, not because of his status. In essence then, the expanded sex gender stereotyping theory avoids the issue of whether equal employment opportunity should be based upon how people act as opposed to who they are.
Equal Protection and Title VII
While earlier court decisions failed to understand that sexual orientation is not a matter of personal preference,[xxiv] Obergefell recognized that orientation is an inherent trait and that LBGT people are a protected class. The issue is not only whether discrimination based on sex encompasses sexual orientation and gender identity, but also whether Title VII’s exclusion represents an unconstitutional interpretation of the word “sex.” When Congress enacted Title VII, sexual orientation was not only unprotected, but misunderstood and reviled. Title VII’s goal was to ensure equal employment opportunity for those groups then recognized needing a legal remedy. As society’s understanding of human sexuality has evolved, exclusion of LGBT people from constitutional protections is unsupportable and cannot be tolerated.
The effect of Obergefell was to pave the way for a statutory claim under Title VII and the need to consider due process and equal protection issues. Many courts and the Equal Employment Opportunity Commission (EEOC), however, continue to wrestle with the sow’s ear of existing precedent and futilely attempt to make it into the silk purse of equal opportunity in employment.
Sex, or Sex-based? EEOC Expands the Definition
In 2015, the EEOC expanded the already broadened view of sex gender stereotyping expressed in Terveer, and used both statute and precedent to find employment protections for some LGBT plaintiffs. In Baldwin v Foxx,[xxv] the agency ruled for the first time that discrimination due to sex-based considerations — like sexual orientation or gender identity — is discrimination “because of sex” and prohibited under Title VII.
The agency did not view Title VII’s “lack of an express reference to sexual orientation” as controlling. The agency quoted the Supreme Court’s opinion in Oncale v Sundowner Offshore Services, Inc,[xxvi] holding that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils. . . .”[xxvii] The EEOC defined sex to encompass gender, a term that includes “socially constructed roles, behaviors, and attitudes.”[xxviii] The agency emphasized its expanded definition did not create a new class of persons, any more than protecting Ann Hopkins — the no-nonsense account executive in Price Waterhouse — created a new protected class of “masculine women.”[xxix] Including sexual orientation as part of the category “sex,” the EEOC proclaimed, merely applied existing Title VII principles to sex discrimination. In 2016 the agency revised its guidelines to reflect its holding and definition of “sex” in Baldwin.[xxx]
LGBT advocates and others hailed the EEOC’s new guidelines and the opinion in Baldwin as potential game-changers. Courts, however, have declined to uniformly embrace the EEOC’s reasoning. Some courts continued to follow pre-Obergefell precedent by grasping onto existing case law with unyielding dogmatism.[xxxi] Other courts question the inconsistency of granting LGBT people the legal right to slumber in their marriage beds, but withholding from them the right to provide economic support to their union.[xxxii]
Circuits Weigh In
These competing views have made their way to the federal circuit courts. In early March 2017, in Evans v Georgia Regional Hospital, the Eleventh Circuit upheld an unpublished lower court decision allowing discrimination against an LGBT plaintiff on the grounds, simply, that “Title VII is not intended to cover discrimination against homosexuals.”[xxxiii] Although the case was remanded to allow the plaintiff to develop a sex gender stereotyping argument, the Eleventh Circuit stuck by its precedent and affirmed that portion of the district court opinion holding there is no Title VII protection for sexual orientation. The decision is being appealed.
At the end of March 2017, in Anonymous v Omnicom Group, Inc, the Second Circuit reversed a district court opinion that dutifully, but reluctantly, ruled for the employer and denied plaintiff’s claim to Title VII protection. The Second Circuit, like the Eleventh Circuit, avoided articulating an argument other than sex gender stereotyping. The court held, in part, that it lacked authority to reconsider existing precedent that held Title VII did not cover discrimination against LGBT people.[xxxiv] Reversing the employer’s victory, however, the court also held that summary judgment had been improperly granted because there was evidence the plaintiff was an effeminate-acting man. Plaintiff was allowed to proceed under a sex gender stereotyping theory on remand.
The Seventh Circuit is the first circuit to hold that sexual orientation and gender identity are protected under Title VII. In October 2016, it vacated a panel decision and granted rehearing en banc in Hively v Ivy Tech Community College of Indiana[xxxv] — a decision that had followed precedent while simultaneously decrying it. In a plurality opinion issued April 4, 2017, the en banc Hively court acknowledged Obergefell had changed more than the law on same-sex marriage and echoed the panel’s concerns that “[t]he cases as they stand … create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”[xxxvi] Five judges of the en banc court, including the chief judge, held “that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”[xxxvii] The five judges concluded that “[i]t would require considerable calisthenics to remove the “sex” from “sexual orientation.”[xxxviii]
Insisting its decision did not overstep or “amend” Title VII, the en banc court, citing Oncale, Obergefell, Price Waterhouse, and Loving v Virginia,[xxxix] maintained that its holding only interpreted Title VII “in light of the Supreme Court’s authoritative interpretations.”[xl] The lead opinion makes clear that, at least in the Seventh Circuit, LBGT plaintiffs no longer need to argue a sex gender stereotyping theory and present evidence they are effeminate men or masculine women to have their day in court. Where the Hively panel described the line between a gender nonconformity claim and sexual orientation as “gossamer thin,” the en banc court concluded the line “does not exist at all” and that discrimination based on sexual orientation is discrimination on the basis of sex.[xli]
Concurring in the result, two judges opined that Title VII, as written, allowed the plaintiff to proceed under a contemporary meaning of the word “sex” to include sexual orientation and to hold otherwise would create “statutory obsolescence.”[xlii] A second concurring opinion reasoned that Ivy Tech discriminated against the lesbian plaintiff because she was sexually attracted to a person of the same sex, and, therefore, the discrimination she suffered was “because of sex.”[xliii] In a lengthy dissent, three judges lamented the problematic existence of the “paradoxical legal landscape” after Obergefell.[xliv] The dissent concluded, however, that interference with the fundamental right to marry under state action was distinguishable from the private action of employers regulated by Title VII, thus raising the issue of Title VII’s constitutionality, post-Obergefell, with respect to sex-based employment discrimination. After discounting the Supreme Court’s decision in Price Waterhouse as a plurality opinion, the discrepancy between the constitutional rights conferred by Obergefell and the statutory rights conferred by Title VII, stated the dissent, was “a matter for legislative, not judicial, correction.”[xlv]
On to the Supreme Court?
 In addressing gender identity, the lead opinion stated, “[t]he discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account.” Slip op at 14.
With the circuits divided, and congressional amendment of Title VII unlikely, will the United States Supreme Court recognize the effect of its own precedent in Obergefell and grant LGBT workers the protected status afforded them under that decision? Presently, in all circuits but one, the right to work, to be hired, promoted, or fired based on skill, experience, and qualifications remains unequal for LGBT people under Title VII. Denying LGBT people the right to be free of workplace discrimination denies them equal protection and due process. In a nation that strongly professes to be pro-family, employment discrimination based on sexual orientation or gender identity harms the stability of our entire social order in this brave land of the free.
[i] 576 US ___ ;135 S Ct 2584, 192 L Ed 2d 609 (2015)
[ii] 42 USCA § 2000e-2
[iii] Hively v Ivy Tech Community College (On Rehearing), No. 15-1720 (CA 7, April 4, 2017), slip op at 5, quoting Hively v Ivy Tech Community College, 830 F.2d 698, 709 (CA 7, 2016)
[iv]No. 15-1720 (CA 7, April 4, 2017)
[v] Obergefell, 135 S Ct at 2594-2595
[vi] Id. at 2595
[vii] Id. at 2599
[viii] Id. at 2600
[xi] Kurin Baksh Blog, “Workplace Discrimination: The LGBT Workforce,” The Huffington Post, 6/22/2016, http://www.huffingtonpost.com/kurina-baksh/workplace-discrimination-_b_10606030.html
[xiii] See Vickers v Fairfield Medical Center, 453 F3d 757 (CA 6, 2006); Bibby v Coca Cola Bottling Co, 260 F3d 257 (CA 3, 2001)
[xiv] Price Waterhouse v Hopkins, 490 US 228; 109 S Ct 1775, 104 L Ed 2d 268 (1989)
[xv] Id. 490 US at 236
[xvi] Bibby, 260 F3d 257; Dawson v Bumble & Bumble, 398 F3d 211, 218 (CA 2, 2005); Prowel v Wise Business Forms, 579 F3d 285 (CA 3, 2009); EEOC v Boh Brothers Construction Co, 731 F3d 444 (CA 5, 2013)
[xvii] 453 F3d 757 (CA 6, 2006)
[xviii] Id. at 759-760
[xix] Id. at 763
[xx] Id. quoting Dawson, 398 F3d at 218
[xxi] Id. at 764
[xxii] ___ US App DC ___; 34 F Supp 3d 100 (2014)
[xxiii] Id. at 116
[xxiv] DeSantis v Pacific Tel & Tel Co, 609 F2d 327 (CA 9, 1979)
[xxv] EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2015), slip op at 6
[xxvi] 523 US 75, 79-80; 118 S Ct 998; 140 L Ed 2d 201 (1998)
[xxvii] Baldwin, EEOC DOC 0120133080, slip op at 9
[xxix] Baldwin, EEOC DOC 0120133080, slip op at 9
[xxx] “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers,” https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm
[xxxi] Evans v Georgia Regional Hospital, No. CV415-103, 2015 WL 5316694 2 (SD Ga, September 10, 2015); slip op at 2; Hinton v Virginia Union University, No. 3:15CV569, 2016 WL 3922053 (ED Va, July 20, 2016)
[xxxii] Hively v Ivy Tech Community College, 830 F3d 698 (2016); EEOC v Scott Medical Center, No. 16-255, 2016 WL 6569233 (WD Pa, Nov 4,2016)
[xxxiii] Evans v Georgia Regional Hospital, No. 15-15234, (CA 11, March 10, 2017), aff’g in part, vacating in part, and remanding Evans v Georgia Regional Hospital (SD Ga, 2015)
[xxxiv] Anonymous v Omnicom Group, Inc, No. 16-748 (CA 2, March 27, 2017), slip op at 2, rev’g Christianson v Omnicom Group, Inc, 167 F Supp 3d 598 (SD NY 2016)
[xxxv] 830 F3d 698 (CA 7 2016), Reh’g en banc granted, opinion vacated, 2016 WL 6768628 (Oct 11, 2016)
[xxxvi] Hively (On Rehearing), No. 151720, slip op at 5, quoting Hively, 830 F3d at 714
[xxxvii] Id. slip op at 23
[xxxviii] Id. slip op at 20
[xxxix] 388 US 1; 87 S Ct 1817; 18 L Ed 2d 1010 (1967)
[xl] Hively, No 151720, slip op at 7, 19, 20, 21
[xli] Id. slip op at 22, 23
[xlii] Id. slip op at 34 (POSNER, J, concurring)
[xliii] Id. slip op at 37 (FLAUM and RIPPLE, JJ, concurring)
[xliv] Id. slip op at 67 (SYKES, BAUER, KANNE, JJ, dissenting)
[xlv] Id. slip op at 60, 66-67 (SYKES, BAUER, KANNE, JJ, dissenting)