Gender Identity, Sexual Orientation, and Employment ...

Gender Identity, Sexual Orientation, and Employment ...

Gender Identity, Sexual Orientation, and Employment Discrimination Law Ann C. McGinley William S. Boyd Professor of Law Co-Director, Workplace Law Program UNLV Boyd School of Law 9th Circuit Conference March 11, 2019

1964 Civil Rights Act, Title VII It shall be an unlawful employment practice for an employer to discriminate against any individual because of such individuals sex. Issue Does discrimination based on sexual orientation or gender identity occur because of sex?

NV law explicitly forbids employment discrimination based on sexual orientation and gender identity, but remedies not the same as federal law Cases - Cert Petitions Bostock v. Clayton Bd. Of Commissioners, Clayton County (11th Cir. 2018) (per curiam)(Discrimination based on sexual orientation is not illegal sex discrimination). Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018)

(Discrimination based on sexual orientation is illegal sex discrimination). R.G. & G.R. Harris Funeral Homes v. EEOC (6th Cir. 2018) (Discrimination based on transgender status/transition is illegal sex discrimination). Interesting Fact Cert petitions filed last spring & summer Rescheduled for conferences nine times

History (1964 2017) All circuits had concluded that discrimination based on sexual orientation or gender identity does not occur because of sex. Price Waterhouse v. Hopkins, 490 U.S. (1989) Illegal to discriminate because of a persons failure to comply with

gender stereotypes. (Masculine women, feminine men used this casestraight, gay, and transto argue they were discriminated against because of sex). Oncale v. Sundowner Offshore Services, Inc (1998).

Harassment of a person of the same sex is illegal under Title VII if it occurs because of sex. Male on male harassment if it occurred because of sexual orientation = not illegal. If it occurred because the victim not masculine enough = illegal. Courts-Conflicts (Sexual orientation and Price Waterhouse)

Some = no cause of action if the plaintiff was gay. Others = plaintiffs must prove discrimination because of failure to conform to gender expectations rather than because of gayvery difficult.

9Th Circuit Rene v. MGM Grand Hotel (2002)(en banc) (plurality) (irrelevant that plaintiff was gay) Nichols v. Azteca Rest. (2001)(HWE created due to a mans feminine nature or dress is illegal).

Courts PW & Gender ID Courts more open to transpeople under Price Waterhouse because dressing or acting in a way that defies social expectations is characteristic of being trans. Still a question as to whether a transperson would have a cause of action if fired because of behavior or dress outside of work. A Better Solution

It would be much cleaner if Title VIIs prohibition of sex discrimination included ban on sexual orientation and gender identity discrimination. EEOC Changes Position: Acting as Tribunal Macy v. Holder (Apr. 20, 2012) Gender identity discrimination = sex

discrimination Baldwin v. Foxx, (July 15, 2015) Sexual orientation discrimination = sex discrimination Obergefell v. Hodges (2015). Same-sex marriage

constitutionally protected Major influence on attitudes about Title VII Marry on Saturday and be fired on Monday! Recent Circuit Splits Title VII: Sexual Orientation/Transgender Status Is Illegal Discrimination

Is NOT Illegal Discrimination Hively v. Ivy Tech Community College (7th Cir. 2017) (en banc) (sexual orientation) Evans v. Georgia Regional Hosp. (11th Cir.)(en banc), cert denied, (2017)(sexual orientation)

Wittmer v. Phillips 66 (5th Cir. 2018) (dicta) (transgender status). Arguments ProTitle VII Plain language One cant discriminate based on sexual orientation or gender identity without doing so based on sex. [Sex needs be only a motivating factor.] But for plaintiffs gender, ER would not discriminate. Association It is illegal under Title VII to discriminate

because of the race of ones romantic partner. Why not sex? Stereotyping The ultimate sex stereotypes are: 1) People should be sexually attracted to persons of opposite sex; 2) People should dress and act in accordance with societal expectations of their biological sex. Best Arguments ConTitle VII Intent Congress never intended sex to include sexual orientation and gender identity. Failed Amendments - Congress has tried over

25-year period to add sexual orientation and transgender status to Title VII or to pass other laws protecting these statuses in employment (ENDA). On Plain Language [S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Oncale v. Sundowner Offshore Services, Inc. (J. Scalia) (holding that same-sex harassment is illegal under Title VII). Employment Non-Discrimination Act John Boehner refused to allow a vote Bill supported by 60% of Americans Recommended Reading Ann C. McGinley, Erasing Boundaries: Masculinities, Sexual Minorities, and Employment Discrimination,

43 U. Mich. J. L. Ref. 713 (2010), available at https://scholars.law.unlv.edu/cgi/viewcontent.cgi?ar ticle=1013&context=facpub . Zack Ford, Supreme Court Poised to Drastically Reverse LGBTQ Equality, https://thinkprogress.org/the-six-lgbtq-cases-awaitin g-consideration-from-the-supreme-court-fe5ea66d67 9d/

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