Currently, there is no federal law explicitly protecting people from sexual orientation or gender identity discrimination in the workplace. At least, that’s the accepted narrative. However, one federal judge has just ruled that a gay man’s discrimination case against the Library of Congress can proceed on the grounds that his manager may have violated a provision in law that has traditionally been used to stop gender discrimination against women.
Known as Title VII of the Civil Rights Act of 1964, the provision prevents most employers from discriminating on grounds of race, color, religion, sex or national origin. The legislation has a few caveats but is often used as a means by which women in particular can bring a claim if they feel they have been unfairly treated on grounds of their sex. The legislation has been interpreted in a number of different ways, but of particular importance here is the 1989 Supreme Court ruling in Price Waterhouse v. Hopkins in which the court held that sex-stereotyping, that is to say expecting someone to act in a particular way because of their birth-assigned sex and then either discriminating on that basis or discriminating when someone doesn’t comply with those expectations, violates Title VII. To be clear though, the Title VII isn’t gender specific. Men can access it as well. And so one man did.
Peter Ter Veer recently sued his supervisor at the Library of Congress, John Mech, claiming that Mech made the workplace a “hostile environment” by his use of “sexual stereotypes.” Essentially, Ter Veer claims Mech made Ter Veer’s working life a misery with a number of anti-gay comments and unfavorably treatment. So, Ter Veer invoked Title VII saying that this broke the sexual stereotypes rule. Government lawyers acting on Mech’s behalf moved to dismiss the case and in so doing aped the fact that there are no federal employee protections that specifically mention homosexuality. So the case should be thrown out, right?
Wrong. U.S. District Court Judge Colleen Kollar-Kotelly ruled on March 31 that the case could proceed. The judge noted that while the Supreme Court has not directly dealt with a case like this, precedent is clear: sex stereotyping applies to both men and women, and that includes stereotyping based on perceptions about how heterosexuality should limit gender expression — essentially, that it is unlawful to assume people are heterosexual and then demand that they act accordingly or harass them when they do not.
Judge Kollar-Kotelly said in the decision to let the case proceed:
Plaintiff has alleged that he is “a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,” that his “status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under Mech’s supervision or at the LOC,” and that “his orientation as homosexual had removed him from Mech’s preconceived definition of male.” As Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes, Plaintiff has met his burden of setting forth “a short and plain statement of the claim showing that the pleader is entitled to relief” as required by Federal Rule of Civil Procedure 8(a). Accordingly, the Court denies Defendant’s Motion to Dismiss Plaintiff’s sex discrimination claim (Count I) for failure to state a claim.
It’s important to note this is not the final word on this case and that this is only a dismissal of the defendant’s move to block proceedings. However, it is the first time that a federal judge has so explicitly said that gay people have a claim under this aspect of existing federal laws. There have been other such claims made in the past and they have usually failed. However, gender identity claims have been more successful and a little publicized series of actions by the government affiliates dating back to a few years ago may in fact have prompted a rethink by the federal courts.
In a move prompted by a letter from various LGBT rights groups into whether trans people might be denied treatment under the Affordable Care Act, the Department of Health and Human Services issued a statement in July of 2012 saying in no uncertain terms that sex-based discrimination based on perceived gender identity and sex expectations is unlawful and that trans people are in this regard at least covered under the Civil Rights Act among other legislation.
Earlier that same year, the Equal Employment Opportunity Commission also issued a unanimous decision stating that discrimination on the basis of gender identity is discrimination on the basis of sex. To be clear, a number of courts had already ruled in line with this thinking before the statement had been issued, but this clarification essentially confirmed that anti-trans discrimination on grounds of sex stereotypes is illegal.
Judge Kollar-Kotelly’s move then to recognize anti-gay employment discrimination under that banner doesn’t seem like it is reaching. Does this, then, mean that there’s no need for the federal Employment Non Discrimination Act?
Not so fast. It’s likely that claims like this will continue to be wrestled over until the Supreme Court of the United States explicitly states that current sex discrimination protections cover gay and trans people — there is an argument, of course, that they already have, but as the lower courts seem in two minds, there clearly is some doubt on the matter.
On that note, should Ter Veer prevail in the lower courts — and based on the harassment he has detailed, his complaint looks strong — this case seems primed for a Supreme Court hearing. We can probably expect the ruling to come down to Justice Anthony Kennedy, our resident swing vote extraordinaire, and whether he will side with a slightly broader interpretation of the Civil Rights Act.
Kennedy hasn’t particularly enjoyed sex discrimination cases in the past and has been rather conservative in their interpretation, but interestingly, in Windsor and the Prop 8 case from 2013 he appeared open to the notion that gay people might be covered under a sex discrimination claim.
Still, it would be much better, then, to have a federal law that, while not able to completely shield LGBTs, provides the courts with the explicit desire of Congress to protect this disfavored class of citizens. That, unfortunately, isn’t likely because while a House vote on ENDA might see at least significant support, Speaker Boehner has doffed his cap to his Tea Party string pullers and is refusing to let the legislation make it to the House floor.
However, we might suggest Boehner has done us a favor on this issue (in a backhanded sort of way, of course). He is on record as saying that anti-LGBT discrimination “is already covered under federal law.” Thanks, Speaker. We might just quote you on that in the very near future.
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