Meagan Hunter worked at Chili’s in Phoenix, Arizona for nearly two years when she was encouraged to apply for a new management training program. Meagan was excited as this promotion would come with a significant raise, meaning she could buy her first home. During her employment at Chili’s she had worked in several positions including cook, expediter, host, and server. As a server, she received great customer reviews. She attended a seminar related to her promotion and wore an outfit similar to many male managers she’d worked with; a button-up shirt and fitted slacks. However, after the seminar, Meagan learned the district manager had labeled her outfit as “inappropriate”. Meagan applied for the promotion anyway and was offered the position with one catch; she had to “dress more gender appropriate.” Meagan realized she could never excel at a company that didn’t allow her to be who she was, so she ended up leaving her position. After leaving Chili’s, Meagan learned the district manager had also told co-workers that he did not hire her as a bartender because he “didn’t want a gay girl behind the bar.”
This is just one example of wide-spread discrimination experienced by LGBTQ employees nation-wide. LGBTQ employees have limited employment protections under federal and Virginia law. However, the Equal Employment Opportunity Commission (EEOC) and some federal circuit courts are working to change that.
EEOC, 2nd, 6th, and 7th Circuit Hold: Sex Discrimination Includes Sexual Orientation
Title VII of the Civil Rights Act of 1964, more commonly referred to as Title VII, bars discrimination based on sex, race, color, religion, and national origin. You’ll notice sexual orientation and gender identity are missing from that list. Currently, sexual orientation and gender identity are not protected under Title VII making it difficult for an LGBTQ employee to sue for discrimination in the workplace, unless a claim for sex discrimination can be made. Some have tried to link sex discrimination to sexual orientation discrimination using PriceWaterhouse v. Hopkins. This case involved a straight woman who was continually denied promotions because the supervisors at her firm deemed her too abrasive and aggressive. In other words, she acted too much like a man. The Supreme Court held this was a form of sex discrimination and employers couldn’t use gendered stereotypes to treat employees differently. Lawyers have often relied on PriceWaterhouse to argue gender should not play a role in employment decisions. While this can be useful, it is often not specific enough to support the particulars surrounding sexual orientation discrimination. However, recent rulings by the EEOC and federal circuits indicate a shift has begun in the legal landscape surrounding sexual orientation and gender identity discrimination.
In 2015, the EEOC decided Baldwin v. Foxx, holding that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Specifically, the EEOC held Title VII prohibited employers from using gender or “sex-based considerations” in employment actions for sex discrimination cases. By discriminating against an individual for their sexual orientation, employers were using those same “sex-based considerations” to discriminate against LGBTQ employees as they were women. This decision allowed courts to shift their thinking regarding sexual orientation discrimination. In 2017, the Seventh Circuit Court of Appeals held in Hively v. Ivy Tech Community College of Indiana, a case involving a lesbian, part-time professor, that sexual orientation is a form of sex discrimination under Title VII. While the court was clear to state sexual orientation was not its own protected category under Title VII, it determined sexual orientation was a subset of sex discrimination and therefore prohibited.
Soon after the Hively decision, the Second Circuit overturned a prior decision in Zarda v. Altitude Express, a case involving the termination of a gay sky diving instructor, stating that sexual orientation discrimination claims are actionable under Title VII as a subset of sex discrimination. Similarly, the Sixth Circuit held in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., a case involving the termination of a transgender funeral director, that federal sex discrimination laws protect gender identity and transgender employees. The Sixth Circuit concluded “discrimination because of an individual’s transgender status is always based on gender stereotypes,” therefore Title VII protects gender identity as a subset of sex discrimination. Other circuits, such as the Ninth Circuit, have been influenced by the changing tide surrounding sexual orientation and gender identity discrimination. In Franks v. City of Santa Ana, an openly lesbian police officer, Tammy Franks, was placed on administrative leave after an anonymous complaint was filed against her. She claimed this was a deviation from policy and believed the real reason was her sexual orientation. While the Ninth Circuit did not rule on her sexual orientation claim, they remanded to the District Court. Because they did not outright reject her claim of sexual orientation discrimination, it shows they are open to the idea that sexual orientation discrimination could be considered sex discrimination much like the Second, Sixth, and Seventh Circuits.
Split in the Circuits
It should be noted that not all federal circuit courts have been persuaded by this logic. After the EEOC decision in 2015, the Eleventh Circuit ruled in Evans v. Georgia Regional Hospital, a case involving the harassment and discrimination of a lesbian security guard, that Title VII does not prohibit discrimination based on sexual orientation in the workplace. This split among federal circuit courts makes the case ripe to be heard before the Supreme Court, which to date has declined to hear any cases related to LGBTQ discrimination under Title VII.
Current Legal Landscape in Virginia
Similar to federal law, Virginia law offers no explicit protections in the workplace for LGBTQ employees. While some localities, such as Alexandria, Arlington, and Charlottesville provide protections, there is no state-wide law that offers blanket protection for LGBTQ employees. During the McAuliffe administration, former-Governor McAuliffe wrote several executive orders barring discrimination in employment against state employees, state contractors, and subcontractors based on sexual orientation and gender identity. In 2018, Governor Northam continued this trend. However, these laws only apply to a specific subset of employees. According to the Williams Institute, only six percent of Virginia’s LGBTQ workforce is covered by laws that protect employees from discrimination based on sexual orientation and gender identity.
While legislators have tried to create a state-wide protection for LGBTQ employees, their attempts have failed. In the 2019 General Assembly, Delegates John Bell and Mark Levine and Senator Adam Ebbin authored bills prohibiting discrimination in employment based on sexual orientation and gender identity. Each of these bills was left in committee.
Conclusion
While no federal or statewide blanket protections currently exists for LGBTQ employees in Virginia, there is hope that this is changing. The EEOC, 2nd, 6th, and 7th Circuit have made a significant impact on the federal level when it comes to LGBTQ discrimination in the workplace. Similarly, current and previous Virginia administrations have made LGBTQ workplace protections a priority.
The Locke & Quinn law firm provides client-oriented legal services and solutions in employment, personal injury, family law, family formation and LGBT matters. When you hire an attorney from our firm, you will meet and work directly with your attorney. We listen to our clients’ concerns and objectives to form ideas and strategies to achieve positive outcomes. 804-285-6253 www.lockequinn.com
