Summary of 2 units
runshengzhou111
StephanieRotondoEmploymen1.pdf
Citation: Stephanie Rotondo, Employment Discrimination against LGBT Persons, 16 Geo. J. Gender & L. 103 (2015) Provided by: University of Oklahoma
Content downloaded/printed from HeinOnline
Mon Oct 29 17:32:25 2018
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:
Copyright Information
Use QR Code reader to send PDF to your smartphone or tablet device
EMPLOYMENT DISCRIMINATION AGAINST LGBT PERSONS
EDITED BY STEPHANIE ROTONDO
INTRODUCTION .......................................... 104
1. IDENTIFYING EMPLOYMENT DISCRIMINATION AGAINST SEXUAL MINORITIES ........................................ 107 A. EMPLOYMENT DISCRIMINATION UNDER FEDERAL LAW:
TITLE VII ...................................... 107 B. CURRENT TREATMENT OF TITLE VII CLAIMS BASED ON
SEXUAL ORIENTATION DISCRIMINATION ................. 109 C. CURRENT TREATMENT OF TITLE VII CLAIMS BASED ON
GENDER IDENTITY DISCRIMINATION . .................... 111
D. REMAINING UNCERTAINTY IN SEXUAL ORIENTATION AND GENDER IDENTITY CLAIMS UNDER TITLE VII.............. 114
II. EMPLOYMENT DISCRIMINATION IN HIRING AND TERMINATION ...... 115 A. FEDERAL EMPLOYEES . .............................. 115
1. Non-Military Personnel. ........................ 115
2. Armed Forces Exception. ....................... 116
B. STATE AND PRIVATE EMPLOYEES . ..................... 118 1. State and Local Statutes on Discrimination........... 118 2. Unequal Discrimination Protection Under Statutes ..... 119 3. Bringing Claims of Hiring and Termination
Discrimination . ............................... 121
a. Failure to Hire............................ 121 b. Wrongful Termination ...................... 122 c. Intentional Infliction of Emotional Distress ....... .. 123 d. Wrongful Termination in Violation of Public
Policy .................................. 124 4. Protections Against Employment Discrimination Based
on Gender Identity ............................ 125
a. Exclusion of Transgender Individuals from "Traditional" Sexual Orientation Remedies....... .. 125
b. Application of Other State Laws to Provide Protection Against Gender Identity Discrimination............................ 126
III. EMPLOYMENT DISCRIMINATION IN PROVISION OF EMPLOYMENT
B ENEFITS........................................... 128 A. MEDICAL SERVICEs-GENDER REASSIGNMENT ............ 128 B. FAMILY-RELATED BENEFITS ......................... 129
1. Equal Protection Claims ........................ 129
103
104 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
a. Importance of the Definition of the Class ......... .. 129 b. Arguments for State Interests ................. 130
2. Anti-Discrimination Statute Claims ................ 131 a. Court Analyses of Discriminatory Classes ........ 132 b. Barriers to Anti-Discrimination Statute Claims .... 132 c. Challenges to Validity of Non-Discrimination
Provisions ............................... 133 3. Explicit Grants of Same-Sex Partner Benefits for
Government Employees ........................ 133 a. State and Local Government Employees ......... 133
i. Recipients of Benefits ................... 134 ii. Challenges to Benefit Grants .............. 134
b. Impact of Federal Defense of Marriage Act ....... .. 135
IV. LOOKING FORWARD .................................... 137
INTRODUCTION
"We are beyond the day when an employer could evaluate employees by assuming or insisting that [the employees] matched the stereotype associated with their group."' While all jurisdictions prohibit employment discrimination based on race, color, religion, sex, or national origin, courts and legislatures have been reluctant to extend these protections to cover sexual orientation and gender identity.
This Article will address the current state of various legal protections for individuals facing employment discrimination due to their sexual orientation or transgender status. Part I provides an overview of current federal laws concerning sexual orientation discrimination. Parts II and III will examine specific types of employment discrimination faced by lesbian, gay, bisexual, transgender, and queer (LGBT) persons based on sexual orientation or transgender status, and will evaluate their successes in bringing such claims.
As a preliminary matter, it is important to differentiate between sexual orientation and gender identity. Sexual orientation is "[t]he scientifically accurate term for an individual's enduring physical, romantic and/or emotional attraction to members of the same and/or opposite sex, including lesbian, gay, bisexual and heterosexual (straight) orientations."2 Gay is the term "used to describe people whose enduring physical, romantic and/or emotional attractions are to people of the same sex."3 Women may prefer to identify as gay, gay women, or lesbian.4
1. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). 2. GLAAD, GLAAD Media Reference Guide-Lesbian/Gay/Bisexual Glossary Of Terms (Dec. 21,
2014), http://www.glaad.org/reference/lgb. 3. Id. 4. Id.
[Vol. XVI: 103
2015] EMPLOYMENT DISCRINNATION 105
Bisexual is a term used for people who are attracted "to those of the same gender or to those of another gender."5
Gender identity is "[o]ne's internal, deeply held sense of one's gender."6
Transgender is "[a]n umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth."
Most courts have not interpreted Title VII of the Civil Rights Act of 1964, which outlaws discrimination in employment "because of . . . sex," to prohibit sexual orientation discrimination.8 Sexual orientation discrimination in employ- ment affects individuals who defy "traditional" conceptions of sexuality. Only twenty-one states and the District of Columbia have statutes that expressly prohibit workplace discrimination based on sexual orientation.9
5. Id. ("[A lesbian is a] woman whose enduring physical, romantic and/or emotional attraction is to other women.").
6. GLAAD, GLAAD Media Reference Guide-Transgender Issues (Dec. 21, 2014), http://www.glaad. org/reference/transgender.
7. Id. 8. See Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 (West, Westlaw through P.L.
113-163 (excluding PL. 113-128) approved 8-8-14); see also Keith J. Hilzendeger, Comment, Walking Title VII's Tight Rope: Advice for Gay & Lesbian Title VII Plaintiffs, 13 LAw & SEXUALITY 705, 706 (2004).
9. Human Rights Campaign, Statewide Employment Laws & Policies 1 (Oct. 9, 2014), http://hrc-assets. s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide-employment_10-2014.pdf. The twenty-one states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. The respective provisions are: CAL. Gov'T CODE § 12920 (West, Westlaw with urgency legislation through Ch. 859 of 2014 Reg. Sess., Res. Ch. 1 of 2013-2014 2d Ex. Sess., and all propositions on 2014 ballots); COLO. REv. STAr. ANN. § 24-34-402. (West, Westlaw through 2d Reg. Sess. of the 69th Gen. Assemb. (2014)); CoNN. GEN. STAT. ANN. § 46a-81c (West, Westlaw current with enactments of Public Acts of the 2014 Feb. Reg. Sess. of the Conn. Gen. Assemb.); DEL. CODE ANN. tit. 19 § 711 (West, Westlaw through 79 Laws 2014, ch. 437); D.C. CODE § 2-1402.11 (West, Westlaw through Sept. 22, 2014); HAw. REv. STAT. § 378-2 (West, Westlaw through Act 235 of the 2014 Reg. Sess. of the Hawaii Legis. ); 775 ILL. COMp. STAT. ANN. 5/1-102 (West, Westlaw through P.A. 98-1050, with the exception of P.A. 98-1038, of the 2014 Reg. Sess.); IOWA CODE ANN. § 216.6 (West, Westlaw with legislation from the 2014 Reg. Sess.); ME. REv. STAT. ANN. tit. 5, § 4552 (West, Westlaw through 2013 Second Reg. Sess. of the 126th Legis. ); MD. CODE ANN. § 20-602 (West, Westlaw through 2014 Reg. Sess. of the Gen. Assemb.); MASS. GEN. LAws ANN. ch. 151B, § 4 (West, Westlaw through Chapter 306 of the 2014 2d Annual Sess.); MINN. STAr. ANN. § 363A.08 (West, Westlaw through the end of the 2014 Reg. Sess.); NEV. REv. STA. ANN. §§ 610.020, 613.340 (West, Westlaw through end of 28th Special Session (2014)); N.H. REv. STAT. ANN. § 354-A:7 (Westlaw with laws current through Chapter 330 of the 2014 Reg. Sess., not including changes and corrections made by the State of New Hampshire, Office of Legislative Services); N.J. STAT. ANN. § 10:5-12 (West, Westlaw through L.2014, c. 60 and J.R. No. 3); N.M. STAT. ANN. § 28-1-7 (West, Westlaw through the end of the 2d Reg. Sess. of the 51st Legis. (2014)); N.Y. EXEC. LAw § 291 (McKinney, Westlaw through L.2014, chapters 1 to 398); OR. REv. STAT. ANN. § 659A.030 (West, Westlaw with 2014 Reg. Sess. legislation effective through 7/1/14 and ballot measures on the 11/4/14 ballot); R.I. GEN. LAws § 28-5-7 (West, Westlaw through Chapter 555 of the January 2014 session); VT. STAT. ANN. tit. 21, § 495 (West, Westlaw through laws No. 90 to 101, 103, 107-108, 110-111, 116, and 192 of the Adjourned Session of the 2013-2014 Vermont General Assemb. (2014)); WASH. REv. CODE ANN. § 49.60.180 (West, Westlaw through the General Effective Date for the 2014 Reg. Sess., and other 2014 Legislation effective through
106 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
The only federal definition of this group comes from the recently repealed discriminatory "Don't Ask, Don't Tell" policy, under which a "homosexual" is defined as an individual who "attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts."o Such acts can include "any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires."" Some states expand this definition to include "affectional, emotional or physical attraction or behavior which is primarily directed towards persons of the same gender."1 2 Gays, lesbians, and bisexuals are encompassed by this definition, 13 however, homo- sexual is now considered "derogatory and offensive by many gay and lesbian people."1 4
Individuals who challenge "traditional" notions of gender identity, including transgender individuals, also face employment discrimination. Currently, a uniform definition of "transgender" does not exist among state and local laws. In the New York City anti-discrimination ordinance, transgender is an umbrella term used to include anyone whose gender identity or gender expression does not match societal expectations of behavior associated with that individual's physical birth sex. 15 The term applies to individuals who cross-dress, experience gender dysphoria, or otherwise deviate from norms of their birth gender.1 6 State statutes targeted toward transgender individuals focus on "gender expression or iden- tity." 1 7 Only eighteen states and the District of Columbia have laws prohibiting
discrimination based upon gender identity, gender expression, or both.1 8
Oct. 1, 2014); Wis. STAT. ANN. § 111.36(l)(d) (West, Westlaw through 2013 Act 380, published 4/25/2014).
10. 10 U.S.C.A. § 654(f)(1) (West, Westlaw through P.L. 113-163 (excluding PL. 113-128) approved 8-8-14) (repealed 2010).
11. Id. § 654(f)(3)(A). 12. See, e.g., N.J. STAT. ANN. § 10:5-5(jj) (West, Westlaw through L.2014, c. 60 and J.R. No. 3). 13. 10 U.S.C.A. §§ 654(f)(1)-(2). 14. GLAAD, GLAAD Media Reference Guide-Transgender Issues (Dec. 21, 2014), http://www.glaad.
org/reference/transgender. 15. "'Transgender' is an umbrella term that includes anyone whose gender identity and/or gender
expression does not match society's expectations of how an individual who was assigned a particular sex at birth should behave in relation to their gender." New York City Comm'n on Human Rights, Guidelines Regarding "Gender Identity" Discrimination, A Form of Gender Discrimination Prohibited by The New York City Human Rights Law (Title 8 of the Administrative Code of the City of New York) 2014, http://www.nyc.gov/html/cchr/downloads/pdf/publications/GenderDisEnglish.pdf.
16. Id. 17. See, e.g., WASH. REV. CODE ANN. § 49.60.040(15) (West, Westlaw with 2014 Legislation effective
on June 12, 2014, the General Effective Date for the 2014 Reg. Sess., and other 2014 Legislation effective through Oct. 1, 2014).
18. Human Rights Campaign, Statewide Employment Laws & Policies 1 (Oct. 9, 2014), http://hrc-assets. s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide-employment_10-2014.pdf. The eighteen states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. The respective provisions are: CAL. Gov'T CODE §§ 12926, 12949 (West, Westlaw with urgency legislation through Ch. 859 of 2014 Reg. Sess., Res. Ch. 1 of 2013-2014 2d Ex. Sess., and all propositions on 2014 ballots); COLO. REv STAT. ANN. §§ 24-34-301, 402 (West, Westlaw
[Vol. XVI: 103
2015] EMPLOYMENT DISCRINNATION 107
Recently, Executive Orders and Agency Directives have attempted to elimi- nate employment discrimination on the basis of sexual orientation or gender identity. On July 21, 2014, President Obama issued Executive Order 1367279 to provide a uniform federal government policy, which prohibits discrimination on the basis of sexual orientation and gender identity in federal government employment and federal contractor employment.19 Subsequently, on August 22, 2014, the Office of Federal Contract Compliance Programs released a Directive clarifying that discrimination on the basis of sex includes gender identity and transgender status. Federal action that recognizes gender identity as a protected category is a significant step toward protecting employees from discrimination. However, a significant number of employers are outside of the scope of this action since it only applies to the federal government and federal contractor employment. Passage of the Employment Non-Discrimination Act (ENDA), which prohibits discrimination against LGBT persons who are employed in the private sector, with the exception of many religious organizations, would increase the number of plaintiffs who can bring cognizable claims for discrimina- tion beyond just those employed by the federal government.2 0
I. IDENTIFYING EMPLOYMENT DISCRINNATION AGAINST SEXUAL MINORITIES
A. EMPLOYMENT DISCRIMINATION UNDER FEDERAL LAW: TITLE VII
Title VII of the Civil Rights Act of 1964 established that "it shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his
through the 2d Reg. Sess. of the 69th Gen. Ass. (2014)); CoNN. GEN. Sw. ANN. § 46a-60 (West, Westlaw with enactments of Public Acts of the 2014 Feb. Reg. Sess. of the Conn. Gen. Ass.); DEL. CODE ANN. tit.
19 § 711(a)(1) (West, Westlaw through 79 Laws 2014, ch. 437); D.C. CODE § 2-1402.11 (West, Westlaw through Sept. 22, 2014); HAw. REv. STAT. § 378-2 (West, Westlaw through Act 235 of the 2014 Reg. Sess. of the Hawaii Legis. ); 775 ILL. COMp. STAr. ANN. §§ 5/1-102, 103 (West, Westlaw through P.A. 98-1050, with the exception of PA. 98-1038, of the 2014 Reg. Sess.); IOWA CODE ANN. § 216.6 (West, Westlaw through 2014 Reg. Sess.); MD. CODE ANN. § 20-602 (West, Westlaw through 2014 Reg. Sess. of the Gen. Assemb.); ME. REv. STAT. ANN. tit. 5, § § 4553, 4571 (West, Westlaw through the 2013 2d Reg. Sess. of the 126th Legis. ); MASS. GEN. LAws ANN. ch. 151B, § 4 (West, Westlaw through Ch. 306 of the 2014 2d Annual Sess.); MINN. STAT. ANN. §§ 363A.03, .08 (West, Westlaw through the end of the 2014 Reg. Sess.); NEV. REv. STAr. ANN. §§ 610.020, 613.340 (West, Westlaw through End of 28th Special Sess. (2014)); N.J. STAr. ANN. § 10:5-12 (West, Westlaw through L.2014, c. 60 and J.R. No. 3.); N.M. STA. ANN. § 28-1-7 (West, Westlaw through the end of the 2d Reg. Sess. of the 51st Legis. (2014)); OR. REV. STAT. ANN. §§ 174.100, 659A.030 (West, Westlaw with 2014 Reg. Sess. legislation effective through 7/1/14 and ballot measures on the 11/4/14 ballot); R.I. GEN. LAws § 28-5-7 (West, Westlaw through Ch. 555 of the Jan. 2014 sess.); VT. STAr. ANN. tit. 21, § 495 (West, Westlaw through laws No. 90 to 101, 103, 107, 108, 110, 111, 116, and 192 of the Adjourned Sess. of the 2013-2014 Vt. Gen. Assemb. (2014)); WASH. REV. CODE ANN. § 49.60.040, .180 (West, Westlaw with 2014 Legislation effective on June 12, 2014, the General Effective Date for the 2014 Reg. Sess., and other 2014 Legislation effective through Oct. 1, 2014).
19. Exec. Order No. 1367279, FR 429712014 WL 3591762 (July 21, 2014). 20. Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. §3(a)(10) (2013) (as referred
to the House of Representatives, Nov. 12, 2013).
108 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."2 1 Traditionally, courts narrowly defined sex discrimination as discrimination "because of sex,"22
reasoning that Congress had "only the traditional notions of 'sex' in mind" when it passed Title VII. 2 3 This narrow interpretation precluded Title VII protection for sexual minorities, as the Seventh Circuit emphasized in upholding the termina- tion of a male-assigned-at-birth pilot who underwent sex reassignment surgery:2 4
[t]he phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men .... [A] prohibition against discrimination based on an individu- al's sex is not synonymous with a prohibition based on an individual's sexual identity disorder or discontent with the sex into which they were born.25
Other courts continued to apply this narrow interpretation of "sex" when deciding whether Title VII prohibits discrimination on the basis of sexual orientation.26
Despite the apparent limitations of the reach of sex discrimination under Title VII, LGBT plaintiffs have found success by building upon the sex stereotyping theories of discrimination articulated by the Supreme Court in Price Waterhouse v. Hopkins.27 In Price Waterhouse v. Hopkins, the Supreme Court significantly expanded the traditional definition of "sex" by incorporating discrimination based on noncompliance with gender stereotypes into Title VII's prohibition on sex discrimination.2 8 In Price Waterhouse, the plaintiff, Ann Hopkins, was rejected for partnership at an accounting firm because her employer felt she was too masculine and needed to "walk more femininely, talk more femininely, dress
21. 42 U.S.C.A. § 2000e-2 (West, Westlaw through P.L. 113-163 (excluding P.L. 113-128) approved 8-8-14).
22. See, e.g., Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084 (5th Cir. 1975); but see Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008).
23. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977). Congress' failed attempts to extend Title ViI's protections to sexual minorities have also been used by courts to justify a narrow interpretation of sex discrimination. See Oiler v. Winn-Dixie La., Inc., Civ. A-00-3114, 2002 WL 31098541, at *1, *4 n.53 (E. D. La. Sept. 16, 2002) (listing thirty-one congressional attempts between 1981 and 2001 to make sexual orientation discrimination in employment an unlawful practice).
24. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1082-84 (7th Cir. 1984). 25. Id. at 1085. 26. See, e.g., Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1221-22 (10th Cir. 2007) ("In light of
the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual."); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (holding that the firing of an employee due to his homosexuality is not covered by the protections of Title VII).
27. 490 U.S. 228, 251 (1989); see, e.g., Schroer, 577 F Supp. 2d at 300. 28. See Price Waterhouse, 490 U.S. 228, 251 (1989).
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
more femininely, wear make-up, have her hair styled, and wear jewelry." 2 9 The Court determined that denying Hopkins partnership because she failed to comply with gender stereotypes was discrimination "because of sex." The Court reasoned that "in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."3 0 LGBT plaintiffs have relied on Price Waterhouse to argue discrimination on the basis of sexual orientation or gender identity is in fact discrimination on the basis of noncompliance with gender stereotypes, and therefore within the protection of Title VII's prohibition on sex discrimination. Such arguments have succeeded to varying degrees.3 1
B. CURRENT TREATMENT OF TITLE VII CLAIMs BASED ON SEXUAL ORIENTATION
DISCRIMINATION
Gay, lesbian, and bisexual persons have not been successful at raising Title VII sex discrimination claims when the harassment they experienced was solely attributed to their perceived sexual orientation. Plaintiffs are more successful when they allege harassment for nonconformity with gender norms.32 The Second Circuit, for example, has refused to extend Title VII to discrimination based on sexual orientation alone.33 In Simonton v. Runyon, relying on the failure of legislatures to expressly expand protection, the court found that the Price Waterhouse "theory would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine and not all heterosexual men are stereotypically masculine."3 4 The Second Circuit has relied on this precedent in numerous decisions.3 5 Other circuits have similarly rejected claims that discrimination based on sexual orientation could be equated with discrimination "because of sex."3 6
29. Id. at 235. 30. Id. at 251 (quoting L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). 31. See E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d444 (5th Cir. 2013) ("[P]laintiff can satisfy
Title VII's because-of-sex requirement with evidence of a plaintiff's perceived failure to conform to traditional gender stereotypes."); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (firing a gay male because he did not conform to gender norms was a violation of Title VII). But see Kiley v. American Soc'y for Prevention of Cruelty to Animals, 296 Fed. Appx. 107 (2d Cir. 2008) ("[A] plaintiff may not use a gender stereotyping claim to "bootstrap protection for sexual orientation into Title VII.") (quoting Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005); Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000) ("Title VII does not prohibit harassment or discrimination because of sexual orientation.").
32. See, e.g., Terveer v. Billington, Civil Action No. 12-1290 (CKK), 2014 WL 1280301 (D.D.C. Mar. 31, 2014) ("Plaintiff's "status as a homosexual male did not conform to the Defendant's gender stereotypes associated with men. . .").
33. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). 34. Id. at 38. 35. See, e.g., Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483 (2d Cir. 2011); Dawson v.
Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). 36. See Muhammad v. Caterpillar, Inc., No. 12-1723, 2014 WL 4418649 (7th Cir. Oct. 16, 2014)
("sexual orientation ... is not prohibited conduct under Title VII"); Gilbert v. Country Music Ass'n, Inc.,
2015] 109
110 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
However, Title VII sex discrimination claims under Price Waterhouse have been fairly successful for gay, lesbian, and bisexual plaintiffs when the harassment is based on the plaintiff's noncompliance with gender stereotypes, rather than strictly on his or her sexual orientation. Rene v. MGM Grand Hotel, Inc., is an illustrative case where the court ruled in favor of the plaintiff, holding that the sexual harassment was based on the plaintiff's un-masculine behaviors rather than his sexual orientation.3 7 The courts reached similar results in Centola v. Potter and Heller v. Columbia Edgewater Country Club.38
In Rene, the plaintiff, a gay male hotel employee, was tormented for walking like a woman, and coworkers referred to Rene as "mufieca" (doll) to reinforce the notion that he "did not conform to their gender-based stereotypes."3 9 The Ninth Circuit held that Rene's allegations constituted a claim of sexual harassment, even though such harassment was not motivated by hostility toward his sexual orientation.40
Another court went even further than Rene in Centola v. Potter by recognizing a direct link between harassment against LGBT individuals and nonconformity with gender stereotypes.4 1 Plaintiff Stephen Centola's coworkers at the United States Postal Service verbally abused him and placed homophobic signs and cartoons in his work area.42 Centola reported these incidents to management and received "further harassment and retaliation" before finally being terminated.4 3
Although noting that claims based solely on sexual orientation are not protected under Title VII, the court found that a plaintiff's sexual orientation may be relevant to a finding of discrimination. The court stated in dicta that:
[s]exual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually-defined gender norms. In fact, stereo- types about homosexuality are directly related to our stereotypes about the proper roles of men and women .... Conceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way
432 Fed. Appx. 516 (6th Cir. 2011) (Under Title VII, "sexual orientation is not a prohibited basis for discriminatory acts.") (citation omitted); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) (dismissing plaintiff's claim because employee only claimed discrimination because of sexual orientation); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997) ("We do not hold that discrimination because of sexual orientation is actionable."); Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996) ("Title VII does not prohibit conduct based on the employee's sexual orientation, whether homosexual, bisexual, or heterosexual."); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (per curiam) ("Discharge for homosexuality is not prohibited by Title VII.").
37. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1069 (9th Cir. 2002). 38. Centola v. Potter, 183 F Supp. 2d 403, 410 (D. Mass. 2002); Heller v. Columbia Edgewater
Country Club, 195 F. Supp. 2d 1212, 1217-20 (D. Or. 2002). 39. Rene, 305 F.3d at 1069. 40. Id. at 1061. 41. Centola, 183 F Supp. 2d at 410. 42. Id. at 407. Coworkers referred to Centola as a "sword swallower" and asked if he "had AIDS yet."
They also "taped pictures of Richard Simmons 'in pink hot pants' to Centola's [work space]." 43. Id.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what 'real' men do or don't do.t
Similarly, in Heller v. Columbia Edgewater Country Club, an Oregon court
applied Title VII to a case in which a lesbian plaintiff brought suit after being
terminated for disputing disciplinary actions that were allegedly motivated by her supervisor's animus toward gays and lesbians. Drawing upon the Court's
reasoning in Price Waterhouse, the Heller court found the discrimination to be
based on sex because Heller would not have been fired "if [she] were a man
dating a woman, instead of a woman dating a woman."4 When viewed together,
these three cases illustrate the possibility of extending Title VII protection to
LGBT plaintiffs by conceptualizing them as not complying with the "ultimate gender stereotype."47
The prohibition on discrimination because of gender stereotypes is not
guaranteed to provide the relief sought by plaintiffs. Employers are permitted to
enforce policies related to gender conformity, if they are equally burdensome.
In Jespersen v. Harrah's Operating Co., the Ninth Circuit upheld the termination
of a female bartender after she failed to comply with a company policy requiring
women to wear "foundation or powder, blush, lipstick and mascara."4 9 In that
court's judgment, the "Personal Best" policy did not violate Title VII because it
imposed equally burdensome gender-differentiated standards on men and
women.5 0 As such, the Ninth Circuit's ruling suggests, at least in some
jurisdictions, employers can make policies requiring employees to adhere to
gender stereotypes.
Title VII has not provided adequate protection for LGBT plaintiffs who are
harassed because of their sexual orientation. Plaintiffs are generally successful
only if harassment was based on nonconformity to gender norms. Though, even
then courts may still refuse to provide the relief sought is the employer's
implemented policy is equally burdensome on employees under Jespersen.
44. Id. 45. Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1217-20 (D. Or. 2002). 46. Id. at 1223. 47. Zachary A. Kramer, Note, The Ultimate Gender Stereotype: Equalizing Gender-Conforming and
Gender Nonconforming Homosexuals Under Title VII, 2004 U. ILL. L. REv. 465, 471 (2004). 48. Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1081 (9th Cir. 2004), rev'd en bane, 444 E3d
1104 (9th Cir. 2006) ("employers are permitted to apply different appearance standards to each sex so long as those standards are equal").
49. Id. 50. Id. at 1085.
2015] III
112 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
C. CURRENT TREATMENT OF TITLE VII CLAIMS BASED ON GENDER IDENTITY
DISCRIMINATION
Although transgender plaintiffs for a long time faced the same problems as gay, lesbian, and bisexual plaintiffs in having their claims recognized under Title VII sex discrimination, transgender plaintiffs have generally been more success- ful. Transgender plaintiffs have successfully secured protection against discrimi- nation under Title VII because courts perceive them as failing to conform, per se,
51to socially-defined gender norms. When employer conduct is not based strictly on gender nonconformity,
transgender plaintiffs have seen results that are more mixed. In Etsitty v. Utah Transit Authority, the Tenth Circuit upheld the termination of a transgender bus driver.5 2 The court found that the plaintiff was fired for a legitimate non- discriminatory reason, namely, concern regarding liability for employing a person with male genitalia who used female public restrooms along the bus route.5 3 The court also found transgender persons as a class are not protected under Title VII; however, it stressed that transgender individuals could still be successful when bringing a gender stereotyping claim under Price Waterhouse.54
Similarly, in Dobre v. National Railroad Passenger Corporation (AMTRAK), the court did not find a violation of Title VII against a transgender female employee because the employee conformed to female gender stereotypes and therefore did not have a solid claim under Price Waterhouse.6
Courts have continued to expound upon the meaning of sex within the sex-stereotyping framework, which improved the prospects of bringing a successful claim under Title VII for transgender plaintiffs. The Sixth Circuit in
51. See Finkel v. Howard County, Md., CIVIL No. JKB-13-3236, 2014 WL 1396386 (D.Md. Apr. 10, 2014) ("Plaintiff's claim that she was discriminated against "because of her obvious transgendered status" is a cognizable claim of sex discrimination under Title VII. To hold otherwise would be "to deny transsexual employees the legal protection other employees enjoy merely by labeling them as transsexuals.") (quoting Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1229 (10th Cir. 2007)); Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) ("Sex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as "transsexual," is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.") (quoting Smith v. City of Salen, 378 F.3d 566 (6th Cir. 2004)); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000) (noting that "sex stereotyping may constitute evidence of sex discrimination"); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (reinstating an Equal Credit Opportunity Act claim on behalf of biologically male plaintiff who alleged that he was denied an opportunity to apply for a loan because he was not dressed in "masculine attire"); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (noting that Title VII prohibits "discrimination because one fails to act in the way expected of a man or woman").
52. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1229 (10th Cir. 2007). 53. Id. 54. Id. at 1229. But see Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F Supp. 2d 653
(S.D. Tex. 2008). 55. Dobre v. Nat'l R.R. Passenger Corp. (AMTRAK), 850 F. Supp. 284, 287 (E.D. Pa. 1993). 56. Id. Compare Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214 (1st Cir. 2000) (finding
discrimination only because the bank treated "a woman who dresses like a man differently than a man who dresses like a woman").
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
Smith v. City of Salem broke from tradition and found that a gender non- conforming transgender person had a valid sexual harassment claim under Title VII. 5 7 The court emphasized that the Price Waterhouse definition of sex as "sex stereotype" went beyond biological sex.
The U.S. District Court in the District of Columbia followed Smith's approach in Schroer v. Billington, and found in favor of a transgender plaintiff who sued for discrimination under Title VII. 5 9 The court held the findings of Ulane, Holloway, and Etsitty are "no longer a tenable approach to statutory construction."6 0 In those cases, courts reasoned that discrimination based upon changing one's sex was not discrimination because of sex since it was not within the original legislative spirit or intent of Title VII. 6 1 Since Ulane and Holloway, the Supreme Court has applied Title VII in other ways not originally contemplated by Congress.6 2 The District Court held the "[1]ibrary's refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination 'because of . .. sex.' 6 3
Recently the U.S. Equal Employment Opportunity Commission (EEOC) issued a decision in Macy v. Holder, clarifying that claims of discrimination based on "gender identity, change of sex, and/or transgender status" are cognizable under Title VII. 6 4 In making its determination, the Commission explained that the statute's protections reached beyond that of just biological sex "in part because the term 'gender' encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity."6 5 The EEOC further clarified that discrimination by an employer against a person because of their transgender status constituted disparate treatment based on that person's sex, regardless of whether the discrimination is because of an individual's non-stereotypical gender expression, because of the employer's discomfort with the individual's transition from one gender to another, or because the employer does not like that the individual identifies as a
66transgendered person.
57. Compare King v. Super Serv., Inc., 68 Fed. Appx. 659, 664 (6th Cir. 2003) (finding that harassment was based on sexual orientation, not on sex, and therefore not covered under Title VII, as "the animosity directed towards the plaintiff because of his apparent sexual orientation is ... different from discrimination on the basis of sex"), with Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (applying Title VII where plaintiff is able to prove case of sex stereotyping based on Price Waterhouse due to his nonconforming behavior and appearance).
58. Smith, 378 F.3d at 573. 59. Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008). 60. Id. at 307. 61. Id. 62. Id. See also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). 63. Schroer, 577 F. Supp. 2d at 308. 64. Macy v. Holder, No. 0120120821, 2012 WL 1435995, at * 1 (E.E.O.C. Apr. 20, 2012). 65. Id. at *6. 66. Id. at *7.
2015] 113
114 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
In making its determination, the EEOC cited the Eleventh Circuit's decision in Glenn v. Brumby,7 noting the court's suggestion that consideration of gender stereotypes was an inherent part of discrimination against transgender people.68
In Glenn, the Eleventh Circuit found the termination of a transgender employee of the Georgia General Assembly Office of Legislative Counsel on the basis of sex-discrimination violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.6 9 The court explained that a person is defined as transgender because of the perception that the individual's behavior "transgresses gender stereotypes [,]" 7 0 and "the very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior."7 Although the court was address- ing an Equal Protection claim, they recognized that a finding that Glenn's employer had acted on the basis of Glenn's gender non-conformity would be sufficient to find a violation under Title VII.72
D. REMAINING UNCERTAINTY IN SEXUAL ORIENTATION AND GENDER IDENTITY
CLAIMS UNDER TITLE VII
The foregoing analysis shows diverging trends in the courts when faced with LGBT plaintiffs bringing Title VII claims. Some courts have ruled in favor of gay, lesbian, and bisexual plaintiffs by recognizing sexual harassment through either behavioral stereotypes about men or women, or even going so far as recognizing harassment based on sexual orientation as included under Title VII. However, despite some changes in Title VII jurisprudence, many courts have refused to include sexual orientation as a factor in sex stereotyping. Thus, while sexual orientation may be considered a factor in some courts, no federal cause of action exists for employment discrimination based solely on sexual orientation. Following the plurality decision in Rene v. MGM Grand Hotel, Inc.,7 one author writes that gay plaintiffs are left "contemplating Title VII claims in a position analogous to that of poker players at the MGM Grand Casino-a plaintiff may believe he has the makings of a good hand ... but everything turns on the last card dealt. If it does not include gender-specific verbal harassment or sexualized touching, the plaintiff loses."74
In contrast, the sex-stereotyping framework articulated in Price Waterhouse has proven more successful for transgender plaintiffs who have brought Title VII
67. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). 68. Macy, 2012 WL 1435995 at *9 (citing Glenn, 663 F.3d at 1312). 69. Glenn, 663 F.3d at 1321. 70. Id. at 1316. 71. Id. (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95
CAL. L. REv. 561, 563 (2007)). 72. Id. at 1321. 73. Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206 (9th Cir. 2001). 74. Ninth Circuit Extends Title VII Protection to Employee Alleging Discrimination based on Sexual
Orientation: Rene v. MGM Grand Hotel, Inc., 116 HARv. L. REv. 1889, 1895-96 (2003).
[Vol. XVI: 103
EMPLOYMENT DISCRIMNNATION
claims. The favorable rulings in Smith and Schroer, and further interpretation provided by the Macy and Glenn analyses, demonstrate how the Price Water- house framework has evolved to encompass sex discrimination based on gender identity and transgender status, and how courts may interpret such claims in the future. President Obama's Executive Order may provide relief for LGBT plaintiffs in future Title VII claims, but it is unclear how the court will interpret the law until future plaintiffs bring cognizable claims under the Executive Order. Uncertainty will remain since administrative agencies are required to adopt new rules and regulations before plaintiffs can challenge employer's actions. Some administrative agencies, like the EEOC, have adopted favorable interpreta- tions of Title VII for LGBT plaintiffs. However, the court is not bound to enforce the agency's interpretation, and federal law, like the Employment Non- Discrimination Act (ENDA), would guarantee LGBT plaintiffs more protection.
II. EMPLOYMENT DISCRIMINATION IN HIRING AND TERMINATION
As analyzed in Part I, LGBT plaintiffs have had some success with claims of sex discrimination under Title VII, but usually under the guise of "discrimination because of sex stereotyping." However, courts have dealt with this issue differently depending on the types of employment involved. For instance, courts tend to show more deference with respect to teachers and religious officials because of their unique positions in dealing with minors and faith-based issues, respectively.
A. FEDERAL EMPLOYEES
1. Non-Military Personnel
For non-military federal employees, Title VII of the Civil Rights Act of 1991 (also known as the Government Employees Rights Act of 1991) is the main claim for workplace sex discrimination.7 6 To bring a claim under § 2000e-16 of Title VII, an individual must be an applicant for federal employment, a current federal employee, or a former federal employee.
A recent case concerning LGBT employment discrimination is Hart v. Lew.7" Hart, a transgender woman, underwent gender reassignment surgery to transition from male to female.7 9 During this time, Hart was employed by the IRS, and
75. See infra notes 280-88 and accompanying text. 76. Helton v. Lipani, 2014 WL 2876442 (M.D.La. 2014) ("Title VII provides 'the exclusive,
preemptive, administrative and judicial scheme for the redress of federal employment discrimination."') (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 829 (1976).
77. 42 U.S.C.A § 2000e-16(a) (West, Westlaw through P.L. 113-163 (excluding P.L. 113-128); Ferguson v. N.Y.C. Transit Auth., 206 F. Supp. 2d 374 (E.D.N.Y. 2002) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 341-46 (1997)).
78. Hart v. Lew, 973 F. Supp. 2d 561, (D.Md. 2013). 79. Id. at 568.
2015] 115
116 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
intended to continue employment during and after surgery.8 o However, upon learning about the surgery, the IRS terminated Hart."' Hart filed an employment discrimination suit under Title VII in the United States District Court for the District of Columbia.8 2 Hart contended "that she was subjected to different treatment on the basis of her gender, because [she] failed to conform to Management's expectations of gender norms, and that IRS Management routinely impeded [her] gender transition, by failing to accommodate her needs."8 3 The court stated that Title VII provides a remedy for "individuals who were discriminated against on the basis of . . . 'sex.'"8 4 Here, Hart's allegations that "she was discriminated against based on her sex, because she is a transsexual, and because she failed to conform to gender norms ... [was] within Title VII's aegis."8 5
Schroer v. Billington also acknowledged discrimination against a transgen- dered plaintiff as cognizable.6 Schroer, a transgender woman, applied for a position of specialist in terrorism with the Congressional Research Service presenting as male.8 7 She was highly qualified and tested higher than any other interviewee.8 After receiving an offer of employment, Schroer informed her employer that she intended to transition from male to female, prompting the Library to withdraw its offer.89 Schroer brought a claim under Title VII. The district court ruled in favor of Schroer, determining that denying her employment because of her transition fits precisely under discrimination "because of sex" under Title VII. 90 The court stated that, for purposes of Title VII liability, it does not matter if an offer of employment is withdrawn because the employee is perceived to be "an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transgender person ... [the plaintiff] is entitled to judgment based on the language of the statute itself." 91
2. Armed Forces Exception
Although military personnel are federal employees, they are uniquely posi- tioned. Until its repeal on September 20, 2011, the Armed Forces' "Don't Ask Don't Tell" policy (DADT) 92 remained a unique exception to employment
80. Id. at 570. 81. Id. at 582. 82. Id. at 570. 83. Id. at 578-79. 84. Id. at 579. 85. Id. 86. Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008). 87. Id. at 295. 88. Id. at 296. 89. Id. 90. Id. at 308. 91. Id. at 305-06. 92. 10 U.S.C.A. § 654 (West, Westlaw through P.L. 113-163 (excluding P.L. 113-128) (repealed
2010).
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
discrimination rules. Although Title VII protected civilian employees and applicants for civilian employment in the departments of the Army, Navy, and Air Force, it did not afford protection to persons who enlisted or applied for enlistment in any of the armed forces of the United States.93 Cases concerning military discharges under DADT generally did not examine sexual orientation or gender identity.94 DADT did not directly address military service by transgender persons; however, the military investigated transgender service members under DADT. 95 The statute required separation from the Armed Forces if one engaged in or solicited participation in homosexual practices, announced homosexual status, or attempted to marry a same-sex partner.96 The statute excluded other conduct protected under the Lawrence v. Texas liberty interests.97 Courts generally recognized a compelling government interest in maintaining "high morale, good order and discipline, and unit cohesion,"98 and therefore most did not find that DADT facially violated substantive due process.
In Witt v. Department of Air Force, a reserve nurse was discharged honorably after the military discovered she was engaged in a same-sex relationship with a civilian while off-base.99 Witt's partner was not part of the military, and Witt stated she never had sexual relations while on duty or while on the grounds of any Air Force base. During their relationship, Witt and her partner shared a home about 250 miles away from the base. While serving in the Air Force, Witt never told any member of the military she was a lesbian. The court ruled that equal protection was not violated by discharging Witt because of a same-sex relationship.0 0 Because the language in DADT is explicitly discriminatory, Witt's sexual orientation was not at issue; DADT explicitly defined "homosexu- ality" to include gay, lesbian, and bisexual persons.1 0o
Similarly, in Cook v. Gates, the First Circuit determined the case without discussing how sexual orientation and gender identity might affect the analy- sis.1 0 2 Instead, the court determined that DADT allowed Congress to reach
93. 5 U.S.C.A. § 102 (West, Westlaw through P.L. 113-163 (excluding PL. 113-128); 10 U.S.C.A. § 101(4),(7) (West, Westlaw through PL. 113-163 (excluding P.L. 113-128); 14 U.S.C.A. §§ 1,3 (West, Westlaw through P.L. 113-163 (excluding PL. 113-128); Civil Rights Act of 1964, § 717(a) codified as amended at 42 U.S.C.A. § 2000e-16(a) (West, Westlaw through PL. 113-163 (excluding P.L. 113-128)).
94. See text accompanying notes 73-75. 95. Transgender Military Service, SERVICEMEMBERs LEGAL DEFENSE NETWORK, http://www.sldn.org/
pages/transgender-issues. 96. 10 U.S.C.A. §654. 97. See Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) (rejecting a challenge to DADT even though "the
Act could apply to some conduct that falls within the zone of protected liberty identified by Lawrence," such as "homosexual conduct occurring off base between two consenting adults in the privacy of their home").
98. 10 U.S.C.A. § 654(a)(6); see also Cook v. Rumsfeld, 429 F. Supp. 2d 385 (D. Mass. 2006). 99. Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008). 100. Id. 101. 10 U.S.C.A §654(f)(1)-(2). 102. See Gates, 528 F.3d at 42.
2015] 117
118 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
private acts if there was a compelling government interest.1 0 3 DADT's purpose, the court held, was not to restrict military members from expressing their sexual orientation, but rather to identify those who have engaged in or are likely to engage in a homosexual act. The fact that DADT may have had, in operation, a chilling effect on expressive conduct did not change the analysis. 104
However, some courts found DADT to be unconstitutional. On September 9, 2010, Judge Virginia Phillips of the Central District of California came to such a conclusion, and struck down DADT,1 0 5 finding it violated the Due Process Clause of the Fifth Amendment as well as the rights to freedom of speech, freedom of association, and freedom to petition the government under the First Amendment. 106 While the case was on appeal, DADT was repealed, leading the Ninth Circuit to vacate Judge Phillips' decision as moot. 107
B. STATE AND PRIVATE EMPLOYEES
1. State and Local Statutes on Discrimination
There is a growing trend at the state and local levels to protect LGBT individuals from employment discrimination. Many states prohibit employment discrimination based on sexual orientation.os The degree of protection in some states depends on whether the employment is private, public, or quasi-public.109 Currently, eighteen states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity, while three additional states prohibit discrimination based on sexual orientation only.1 0 Additionally, there are nine states that have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity.
103. Id. at 62. 104. Id. 105. Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010), vacated, 658 F.3d
1162 (9th Cir. Sept. 29, 2011). 106. Id. at 910-28. 107. Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. Sept. 29, 2011). 108. See supra note 9. The twenty-one states are: California, Colorado, Connecticut, Delaware,
Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. The District of Columbia also prohibits discrimination on the basis of sexual orientation.
109. Id. 110. See supra note 18. 111. Del. Exec. Order No. 08 (Aug. 11, 2009), available at http://governor.delaware.gov/orders/exec-
order_08.shtml#TopOfPage; IND. OFFICE OF THE GOVERNOR, GOVERNOR'S POLICY STATEMENT (Apr. 26, 2005), http://www.in.gov/spd/files/gov policy.pdf; Kan. Exec. Order No. 07-24 (Aug. 21, 2007), available at http://kslib.info/DocumentCenter/View/547; Ky. Exec. Order No. 2008-473 (June 2, 2008), https://personnel.ky.gov/Documents/EqualOpportunityEO2008473.pdf; Bill H.3810 187th (Mass. 2011), available at https://maLegis.gov/Laws/Sessionlaws/Acts/201 1/Chapterl99; Mich. Exec. Order No. 2007-24 (Nov. 21, 2007), available at http://www.michigan.gov/formergovernors/0,4584,7-212-57648 36898-180697--,00.html; N.Y. Exec. Order No. 33 (Dec. 16, 2009), http://worldcat.org/arcviewer/4/ AO%23/2010/12/28/H1293463408438/viewer/file2314.pdf; Ohio Exec. Order No. 2007-lOS (May 17,
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
In addition, many local governments provide their own protections against employment discrimination on the basis of sexual orientation. At least 200 cities and counties have enacted ordinances that prohibit pubic and private employers from discriminating on the basis of sexual orientation. 112
2. Unequal Discrimination Protection Under Statutes
State statutes do not provide the same levels of protection against discrimina- tion to all employees. States differentiate between public, quasi-public, and private employers. In order to extend protection to more employees, who are not covered by statutes based on their employers' status as public or private, some courts have looked to how the business functions to determine whether discrimination statutes apply. An example of this treatment is Gay Law Students Association v. Pacific Telephone and Telegraph Company.11 3 The court in this case determined that because the utility was a highly-regulated and protected monopoly, it was "more akin to a governmental entity than to a purely private employer."'1 4 The court rationalized that because the "breadth and depth of governmental regulation of a public utility's business practices inextricably ties [sic] the state to a public utility's conduct, both in the public's perception and in the utility's day-to-day activities," the entity must conduct its affairs more like a governmental entity than like a private corporation. 1 5 While the court relied on the state constitution's Equal Protection Clause to rule against the employer,1 6
California later amended its discrimination statute to incorporate this holding, protecting both public and private employees through legislation. 117
Additionally, in a 2003 sovereign immunity case, a Washington court adopted an argument based on Gay Law Students Association to allow a patient to sue her doctor." The court held that the "public health authority established by a
2007), http://www.epa.state.oh.us/Portals/36/documents/Executive%200rder%202007-10S.pdf; Pa. Exec. Order No. 2003-10 (July 28, 2003), http://www.portal.state.pa.us/portal/server.pt/gateway/PTARGS_0 2_785_708_0_43/http%3B/pubcontent.state.pa.us/publishedcontent/publish/global/files/executive orders/2000 2009/2003_10.pdf.
112. HUMAN RIGHTS CAMPAIGN, Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity (Aug. 14, 2014), http://www.hrc.org/resources/entry/cities-and-counties-with- non-discrimination-ordinances-that-include-gender.
113. 595 P2d 592 (Cal. 1979). 114. Id. at 599. 115. Id. 116. Id. ("[A]rbitrary exclusion of qualified individuals from employment opportunities by a
state-protected public utility does, indeed, violate the state constitutional rights of the victims of such discrimination.").
117. The holdings of Gay Law Students Ass'n and Soroka v. Dayton Hudson Corp., 1 Cal. Rptr. 2d 77, 89 (1991), effectively amended California employment statutes to prohibit discrimination on the basis of sexual orientation. The holdings were later codified at CAL. Gov'T CODE § 12940 (West, Westlaw with urgency legislation through Ch. 859 of 2014 Reg. Sess., Res. Ch. 1 of 2013-2014 2d Ex. Sess., and all propositions on 2014 ballots). For a discussion of the legislative history, see Murray v. Oceanside Unified Sch. Dist., 95 Cal. Rptr. 2d 28, 36 (Cal. Ct. App. 2000).
118. Woods v. Bailet, 67 P.3d 511, 514-15 (Wash. Ct. App. 2003).
2015] 119
120 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
municipality for the purpose of providing [health care for the general welfare]" was a quasi-municipal corporation that qualified as a local government entity for purposes of a statute waiving sovereign immunity.119 This new case law could be used in future Washington discrimination cases to extend the protection of sexual orientation statutes to employers that can be categorized as "quasi-public" corporations or state protected monopolies.12 0 Thus, equal protection doctrine, along with state statutes that explicitly protect against sexual orientation discrimination, may be a source of relief for LGBT plaintiffs, at least for employees of the government or industries subject to the same regulations as government employees.
Conversely, many state entities acknowledge heightened levels of deference for certain employers that are faced with sexual orientation discrimination suits brought under constitutional rights claims such as the Equal Protection Clause and the First Amendment. Groups with less protection may include teachers, police, firefighters, and civil servants.12 1 For instance, school employers may argue that the need for greater control over the work environment and morality excuses certain degrees of discrimination. 122 For teachers, this higher standard of conduct originates from the responsibility of working with young students in the educational environment. 123 If, in addition to the special vulnerability of the young, there is the factor of mental disability, the responsibility is greater still. Some school districts have been able to argue that homosexuality presents a "moral issue" and therefore they have a right and an obligation to look out for the "best interests" of their students. 124 However, many courts have struck down school policies on vagueness grounds when they include general provisions to terminate and refuse to hire or promote on moral deficiency grounds.12 5 The rationale for these rulings has generally been that citing a general requirement of morality, without a specific reference to an articulated standard, leaves the moral judgment open to the whims and uneven application of a particular school board's notion of morality. 12 6 Furthermore, many teachers who were discrimi-
119. Id. Plaintiff's allegation that doctors performed surgery on her without informed consent required her to file a claim with the corporation's governing body prior to filing suit, in accordance with the sovereign immunity statute.
120. See id.; Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 599 (Cal. 1979). 121. See generally 10 LEX. K. LARSON, EMPLOYMENTDISCRIMINATION, §§ 168.08-09 (Matthew Bender
2011). 122. Id.; NAN HUNTER ET AL., THE RIGHTS OF LESBIANS, GAY MEN, BISEXUALs, AND TRANSGENDER
PEOPLE 83 (4th ed. 2004). 123. 10 LARSON, supra note 121, at § 168.08. 124. See, e.g., Gish v. Bd. of Educ., 366 A.2d 1337, 1342 (N.J. Super. Ct. App. Div. 1976) ("That the
school authorities have the right and duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted.").
125. See, e.g., Burton v. Cascade Sch. Dist. Union High Sch. No. 5, 353 F. Supp. 254, 255 (D. Or. 1973) (interpreting Oregon law to hold that "immorality" is unconstitutionally vague as grounds for dismissal; regulation must define immorality and cannot depend on the idiosyncrasies of the individual school board members, or of the community as a whole), cert. denied, 423 U.S. 839 (1975).
126. Id. at 255.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
nated against because of sexual orientation have successfully brought constitu- tional rights claims. 127
3. Bringing Claims of Hiring and Termination Discrimination
Generally, LGBT persons have found protection only in anti-discrimination statutes that expressly prohibit sexual orientation discrimination.128 These laws usually protect certain classes of employees from adverse employment deci- sions,129 including termination, failing to hire or promote, providing lower salaries or benefits, and offering inferior work terms.1 30
a. Failure to Hire. The burden-shifting framework for a claim of discrimina- tory failure to hire creates a relatively high standard for potential plaintiffs. 131 An employee plaintiff is required to establish: "(1) he/[/she] is a member of a protected class; (2) he[/she] was qualified for the position he sought; (3) he[/she] was subjected to adverse employment action; and (4) the position remained open or was filled by someone else with similar qualifications."1 3 2 If the plaintiff succeeds, a presumption of discrimination arises.13 3 Then the employer will have the burden of stating a "legitimate, nondiscriminatory reason for the adverse
127. See 10 LARSON, supra note 121, at § 168.08, for a discussion of cases where teachers successfully brought First Amendment and Equal Protection Clause cases.
128. See, e.g., Flynn v. Hillard, 707 N.E.2d 716, 720 (Ill. App. Ct. 1999) (stating that claim should have been brought under city statute that prohibited sexual orientation discrimination instead of state anti-discrimination that did not expressly protect against sexual orientation discrimination); Barbour v. Dep't of Soc. Servs., 497 N.W.2d 216, 217-18 (Mich. Ct. App. 1993) (demonstrating that no claim is available where protections of civil rights statute were aimed at gender discrimination, not sexual orientation discrimination); Nacinovich v. Tullet & Tokyo Forex, Inc., 685 N.Y.S.2d 17 (N.Y. App. Div. 1999) (noting that civil rights statute did not prohibit sexual orientation discrimination, but claim could survive under New York City Human Rights Law, codified at N.Y. ADMIN. CODE § 8-107). But see Hubert v. Williams, 184 Cal. Rptr. 161, 162-63 (Cal. App. Dep't Super. Ct. 1982) (providing that LGBT persons protected under state civil rights act, although not explicitly stated, where statute had been interpreted to prohibit all forms of arbitrary discrimination by business establishments).
129. See, e.g., Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 595 P2d 592, 599 (Cal. 1979). In this case, even though the state statute did not protect against sexual orientation discrimination, arbitrary employment decisions against a class of persons by a public utility company were held to violate state due process rights under the state constitution. Id. Protection for sexual orientation has since been codified in California under CAL. Gov. CODE § 12920.
130. HUNTER, supra note 122, at 74. 131. See, e.g., Robin Cheryl Miller, Annotation, Validity, Construction, and Application of State
Enactment, Order or Regulation Expressly Prohibiting Sexual Orientation Discrimination, 82 A.L.R.5th 1, § 7 (2000) (discussing cases where plaintiff job applicants failed to establish prima facie cases of employment discrimination due to lack of sufficient evidence); Sondheimer v. Georgetown Univ., Civ. A. No. 87-1052-LFO, 1987 WL 14618, at *3 (D.D.C. Oct. 20, 1987) (applicant unable to establish a prima facie case of employment discrimination). But see R.I. GEN. LAws ANN. §§ 28-5-7.2 ("An unlawful employment practice . . . may be established by proof of disparate impact."), 28-5-7.3 (establishing that discrimination only has to be one motivating factor in termination to constitute an unlawful employment practice) (West, Westlaw through Ch. 555 of the Jan. 2014 sess.).
132. Prescott v. Higgins, 538 F.3d 32, 41 (1st Cir. 2008) (citation omitted). 133. Cook v. PC Connection, Inc., No. 08-cv-496-SM, 2010 WL 148369, at *4 (D.N.H. Jan. 13,
2010).
2015] 121
122 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
employment action."'1 3 4 If the employer succeeds, the plaintiff must present evidence demonstrating the reason articulated by the defendant was a pretext for unlawful discrimination. 135 The plaintiff must do more than refute or question the employer's nondiscriminatory reason for the action.13 6
b. Wrongful Termination. In contrast, wrongful termination claims may be easier to establish than those of discriminatory failure to hire. First, the burden of proof in wrongful termination cases is less forgiving to the employer since showing an increased likelihood of termination based on an employee's sexual orientation or gender identity is sufficient to meet this burden.13 7 In addition, employees have many more tools available to prove wrongful termination. For example, plaintiffs may avail themselves of circumstantial evidence and claim constructive termination based on a hostile work environment.138
Many states apply objective standards in making determinations regarding constructive termination.139 Specifically, an employee must prove, by the preponderance of evidence, "that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign."1 4 0
In Kovatch v. California Casualty Management Co., evidence of decreased job responsibilities, ostracized work environment, and threatened termination consti- tuted a showing of constructive termination.141 The plaintiff had been tormented about his sexual orientation at work to the point that he required psychiatric counseling. 142 After exhausting his disability leave, which he had taken under his psychiatrist's advisement, Kovatch refused to return to work or take an alternate position that he found less desirable.14 3 In overturning a summary judgment ruling against the plaintiff, the court held there was evidence to show that Kovatch's employer could have discriminated against him because of his sexual orientation by failing to provide an adequate remedy for the harassment. 144
134. Id. (quoting Santiago-Ramos v. Centennial PR. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000)). 135. Id. (citing St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 510-11 (1993)). 136. Id. 137. Leibert v. Transworld Sys., Inc., 39 Cal. Rptr. 2d 65, 70 (Cal. Dist. Ct. App. 1995) (holding that
employee's subjection to a heightened degree of job performance scrutiny and threats of firing were sufficient to constitute discrimination).
138. See Miller, supra note 131. 139. Baker v. Tremco Inc., 890 N.E.2d 73, 80 (Ind. Ct. App. 2008); Kosa v. Dallas Lite & Barricade,
Inc., 228 S.W.3d 428, 430 (Tex. App. 2007); Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135, 138 (D.C. 2006); Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1027 (Cal. 1994), overruled on other grounds, Romano v. Rockwell Int'l, Inc., 926 P.2d 1114 (Cal. 1996).
140. Turner, 876 P2d at 1029. 141. Kovatch v. Cal. Casualty Mgmt. Co., 77 Cal. Rptr. 2d 217 (Ct. App. 1998). 142. Id. at 225-26. 143. Id. at 222-23. 144. Id. at 228-29.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
Circumstantial evidence is an accepted and often necessary method for demonstrating the requisite causal link between an employee's sexual orientation and subsequent termination.14 5 In turn, courts do not always require direct evidence to show that disclosure of sexuality caused termination. 146 In many cases, the admissibility of circumstantial evidence will mean the difference between summary judgment for or against the plaintiff. 147
c. Intentional Infliction of Emotional Distress. An employee can bring an intentional infliction of emotional distress claim, in addition to the employment discrimination claim, if an employer purposely causes severe emotional distress through extreme and outrageous conduct. Many courts recognize intentional infliction of emotional distress as a right to relief separate from a discrimination claim.148 In order to establish a claim of intentional infliction of emotional distress, a plaintiff must include the traditional elements of this tort in his or her prima facie case. 149 However, in the absence of a bright-line standard for what level of harassment an employer must intentionally or negligently inflict on an employee, it is extremely difficult for LGBT plaintiffs to survive a summary judgment motion. Courts have generally been unwilling to find a defendant liable for intentional or negligent infliction of emotional distress when the only conduct
145. See, e.g., Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (finding that because employers rarely leave trail of concrete evidence, circumstantial evidence is appropriate way to build case against employer charged with discrimination); Sussman v. N.Y.C. Health and Hosps. Corp., No. 94 CIV 8461 (DBS), 1997 WL 334964, at *15 (S.D.N.Y. June 16, 1997) (finding circumstantial evidence that employer's hostility towards employee increased after disclosure of employee's sexual orientation was sufficient to survive employer's motion for summary judgment).
146. See, e.g., Goins v. W. Grp., 635 N.W.2d 717, 724 (Minn. 2001). Disparate treatment claims based on circumstantial evidence are governed by the burden-shifting framework established under the McDonnell Douglas scheme. This scheme allocates the burden of producing evidence between the parties and establishes the order of presentation of proof. A plaintiff must first establish a prima facie case of discriminatory motive. If the plaintiff makes this showing, the burden of production then shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse employment action. If the employer articulates such a reason, the plaintiff must then put forward sufficient evidence to demonstrate that the employer's proffered explanation was a pretext for discrimination. The burden of persuasion, however, remains with the plaintiff at all stages. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
147. See Hollander, 895 F.2d at 84. 148. See, e.g., De La Campa v. Grifols Am., Inc., 819 So.2d 940, 943-44 (Fla. Dist. Ct. App. 2002);
Tenney v. Gen. Elec. Co., No. 2001-T-0035, 2002 WL 1305990, at *2 (Ohio Ct. App. June 14, 2002), rev'd, No. 2005-T-0119, 2007 WL 1881315, (Ohio App. 11 Dist. Jun 29, 2007), reinstated, 887 N.E.2d 349 (Ohio 2008); Kofoid v. Woodard Hotels, 716 P.2d 771, 775 (Or. Ct. App. 1986) (holding that lower court erred in finding that a statutory violation preempted the independent claim of intentional infliction of emotional distress); Holien v. Sears, Roebuck & Co., 677 P.2d 704, 705 (Or. Ct. App. 1984).
149. See Harris v. Jefferson Partners, L.P., 653 N.W.2d 496, 499 (S.D. 2002); Ellison v. Stam, 136 P3d 1242, 1249 (Utah Ct. App. 2006). The traditional elements of the tort of intentional infliction of emotional distress are: (1) the defendant intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends generally accepted standards of decency and morality, (2) the defendant engaged in such conduct either with the purpose of inflicting emotional distress or where a reasonable person would have known that such would result, and (3) the defendant's conduct directly resulted in severe emotional distress. Ellison, 136 P3d at 1249.
2015] 123
124 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
complained of is in the nature of harassment because of the employee's actual or presumed sexual orientation.1 5 0 These claims are difficult to successfully bring, as evidenced by a string of unsuccessful cases. 15' For example, the District Court for the Southern District of New York in Moye v. Gary rejected the plaintiff's claim that her employer had engaged in intentional infliction of emotional distress when a supervisor called her a "fag" and suggested that she was a lesbian. 152 The court held that the comments were not sufficiently outrageous to state a claim.15 3 The court implied that further "outrageous" actions beyond name-calling were necessary to constitute intentional infliction of emotional distress. Comparably, the District of Connecticut expressly stated:
[t]he standard of outrageousness for cases of intentional infliction of emotional distress is high: 'Liability . . . has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"1 5 4
In cases similar to those in the Southern District of New York and the District of Connecticut, several courts indicate that gays, lesbians, and bisexuals should reasonably expect, and be willing to tolerate, some level of harassment obviously originating from their sexual orientations.1 5 5 Until courts adopt a more stringent standard for such harassment, the intentional infliction of emotional distress claim is a weak substitute for the explicit right to relief under a state anti-discrimination statute.
150. CAMILLE L. HEBERT, EMPLOYEE PRIVACY LAw §§ 9:39-9:42 (2004). 151. Most of the cases illustrate the types of conduct that are insufficient to rise to the level of
outrageousness needed to recover. See, e.g., De La Campa, 819 So.2d at 943-944 (finding that employer's expression of displeasure about employee's sexual orientation and statement that he would be terminated, while offensive, were not outrageous enough to support a claim of intentional infliction of emotion distress); Baliva v. State Farm Mut. Auto. Ins. Co., 730 N.Y.S.2d 655, 657 (N.Y. App. Div. 2001) (finding allegations that employer touched female employee's shoulder several times, screamed at her about work, invaded her personal space, made one comment with respect to sexual orientation, and glanced at her in a sexual manner one or two times did not support employee's cause of action alleging intentional infliction of emotional distress).
152. 595 F. Supp. 738 (S.D.N.Y. 1984). 153. Id. 154. Byra-Grzegorczyk v. Bristol-Myers Squibb Co., 572 F.Supp.2d 233, 256 (D. Conn. 2008)
(dismissing plaintiff's intentional infliction of emotional distress claim on a motion for summary judgment).
155. See HEBERT, supra note 150, at § 9:42.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
d. Wrongful Termination in Violation of Public Policy. Employees may also find relief under exceptions to the employment-at-will rule.1 5 6 The exception for the employment-at-will rule has been recognized by a number of states to prevent an employer from discharging an employee if it would violate public policy. 157 Because many states do not protect against discrimination on the basis of sexual orientation, a claim necessitating a clear enunciation of a public policy is hard to prove. 1 5 The court in Hicks v. Arthur 5 9 applied Pennsylvania state law to determine that at-will employment can be terminated with or without cause, except when the termination is in violation of a "significant, clearly mandated, public policy."1 6 0 The court also held no statutory remedy need be in existence as
long as the public policy is clear. 16' However, if alternative causes of action exist in clearly articulated laws by the legislature, the wrongful termination claim cannot be maintained. 162 In Hicks, protection from discrimination on the basis of sexual orientation was deemed not to be a "clearly mandated public policy" so as to create such an exception to the at-will doctrine. 163 Despite their challenges, these causes of action provide alternative possibilities for relief to the limited state and federal protections against employment discrimination on the basis of sexual orientation.
4. Protections Against Employment Discrimination Based on Gender Identity
a. Exclusion of Transgender Individuals from "Traditional" Sexual Orientation Remedies. Outside of legislative action, executive orders, and judicial opinions, less protection exists for gender identity and expression than for sexual orientation.164 Currently only eighteen states and the District of Columbia provide statutory protection against sexual orientation and gender identity discrimination.1 6 5 In addition to existing state protections, at least 200 cities and
156. Id. 157. Id.; see also Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 512 (N.J. 1980) (including legislation,
administrative rules, regulations or decisions, judicial decisions, and, in certain instances, professional codes of ethics as possible sources of public policy).
158. See Human Rights Campaign, supra note 9. 159. Hicks v. Arthur, 843 F Supp. 949 (E.D. Pa. 1994). 160. Id. at 957 (citation omitted). 161. Id. 162. Id. But see Kovatch v. Cal. Casualty Mgmt. Co., 77 Cal. Rptr. 2d 217, 230 (Cal. Ct. App. 1998)
("A claim for wrongful termination in violation of public policy is one type of claim that is not barred by the exclusive remedy provisions of the Workers' Compensation Act.").
163. Hicks, 843 F. Supp. at 957. 164. See, e.g., Cheryl Jacques, Putting the '' into ENDA: HRC's Board Has Decided Not to Support
ENDA Without Transgender Protections; It's the Right and Pragmatic Thing to Do, WASH. BLADE (Aug. 13, 2004), http://www.campuspride.org/supporttransENDA.asp.
165. Human Rights Campaign, Statewide Employment Laws & Policies 1 (Oct. 9, 2014), http://hrc- assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide-employment_10-2014. pdf. The eighteen states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. The respective provisions are: CAL. Gov'T CODE §§ 422.56; 12926; (West,
2015] 125
126 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
counties prohibit discrimination in employment based on gender identity. 166 The New York City Human Rights Law, for example, grants protection to transgender individuals. 167
b. Application of Other State Laws to Provide Protection Against Gender Identity Discrimination. States legislative, executive, and judicial bodies have interpreted existing state law to include some protection against discrimination for transgender individuals. 168 For example, transgender plaintiffs have been able to find relief through state disability statutes, as long as the statutes do not take the same form as the Americans with Disabilities Act (ADA), which explicitly excludes gender identity disorders.169 In 1992, the Washington Court of Appeals in Doe v. Boeing Co. found that the plaintiff's gender dysphoria1 7 0 constituted a
Westlaw, Current with all 2014 Reg. Sess. laws, Res. Ch. 1 of 2013-2014 2d Ex. Sess. and all propositions on 2014 ballots); COLO. REv STAT. ANN. § 24-34-402. (West, Westlaw through 2d Reg. Sess. of the 69th Gen. Assemb. (2014)); CoNN. GEN. Sw. ANN. § 46a-51 (West, Westlaw current with enactments of Public Acts of the 2014 Feb. Reg. Sess. of the Conn. Gen. Assemb.); DEL. CODE ANN. tit. 19 § 711 (West, Westlaw through 79 Laws 2014, ch. 437); D.C. CODE § 2-1402.11 (West, Westlaw through Sept. 22, 2014); HAw. REv STAr. § 368-1 (West, Westlaw through Act 235 of the 2014 Reg. Sess. of the Hawaii Legis.); 775 ILL. COMP. STAT. ANN. 5/1-103 (West, Westlaw through PA. 98-1130 of the 2014 Reg. Sess.); IOWA CODE ANN. § 216.2 (West, Westlaw through 2014 Reg. Sess.); ME. REv Sw. ANN. tit. 5, § 4552 (West, Westlaw through 2013 2d Reg. Sess. of the 126th Legis.); MD. CODE ANN. § 20-602 (West, Westlaw through 2014 Reg. Sess. of the Gen. Assemb.); MASS. GEN. LAws ANN. ch. 151B, § 4 (West, Westlaw through Ch. 306 of the 2014 2d Annual Sess.); MINN. STAT. ANN. § 363A.02; 363A.03 (West, Westlaw through the end of the 2014 Reg. Sess.); NEV. REv STAT. ANN. §§ 610.010; 610.020, 613.310; 613.320; 613.330; 613.350 (West, Westlaw through end of 28th Special Sess. (2014)); N.J. STA. ANN. § 10:5-5(rr) (West, Westlaw through L.2014, ch. 60 and J.R. No. 3); N.M. STAT. ANN. § 28-1-2(Q) (West, Westlaw through the end of the 2d Reg. Sess. of the 51st Legis. (2014)); OR. REv. STAr. ANN. § 659A.030 (West, Westlaw through 2014 Reg. Sess. legislation effective through 7/1/14 and ballot measures on the 11/4/14 ballot); R.I. GEN. LAws § 11-24-2 (West, Westlaw through Ch. 555 of the Jan. 2014 sess.); VT. STAT. ANN. tit. 21, § 495 (West, Westlaw through laws No. 90 to 101, 103, 107, 108, 110, 111, 116, and 192 of the Adjourned Sess. of the 2013-2014 Vt. Gen. Assemb. (2014)); WASH. REv. CODE ANN. § 49.60.040 (West, Westlaw with 2014 Legislation effective on June 12, 2014, the General Effective Date for the 2014 Reg. Sess., and other 2014 Legislation effective through Oct. 1, 2014).
166. Human Rights Campaign, Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity (Aug. 14, 2014), http://www.hrc.org/resources/entry/cities-and-counties-with-non- discrimination-ordinances-that-include-gender.
167. N.YC. ADMIN. CODE § 8-107 (2004), available at http://www.nyc.gov/html/dcas/downloads/pdf/ misc/psb 100_13_8_107.pdf.
168. See Philip M. Berkowitz, Employment Law Post-Summer Roundup: Court Rulings, Legislative Proposals, N.Y. L. J., 2007, at 5.
169. 25 AM. JUR. 3D Contracts 415 § 2 (2006). The ADA makes the following express exclusions from its definition of "disability": "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders." See Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101-02 (West, Westlaw through PL. 113-163 (excluding P.L. 113-128) approved 8-8-14).
170. "Gender dysphoria" is a general term for persons who have confusion or discomfort about their birth gender. Milder forms of gender dysphoria cause incomplete or occasional feelings of being the opposite sex. The most intense form of the condition, with complete gender reversal, is called transgenderism. A transgender person is a male or female who has a lifelong feeling of being trapped in the wrong body. The identification with the opposite sex is so strong and persistent that the transgender person feels the only way to achieve peace of mind is to change the body to match the mind. Some go
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
handicap for the purposes of the Washington Law Against Discrimination, which defines handicap as "any sensory, mental, or physical disability."1 7 ' Nonetheless, the Washington Supreme Court reversed.1 72 Although the court found Doe's gender dysphoria to constitute an abnormal condition, it held that her employer did not discriminate against her because of that condition by failing to accommodate its dress code.1 7 3 While Doe ultimately lost her claim, courts began to acknowledge the validity of the claim of gender identity discrimination under state disability laws.
In many of these cases, the state already has a statute protecting sexual orientation.1 7 4 However, these protections do not always extend broadly. In Minnesota, for example, courts held the state statute, explicitly providing protection for gender identity and expression, does not require employers to make accommodations for individuals during the transition process, such as providing access to a different restroom.1 7 5 Thus, even where states have provided some form of protection for gender identity and expression, this protection has been limited.
In the same year as Doe, the Florida Commission on Human Rights, in an eight-to-one decision, found the discharge of a transgender corrections officer to be discrimination based on a disability.1 7 6 More recently, in Enriquez v. West Jersey Health Systems, a New Jersey court held in 2001 that gender dysphoria constituted a disability that entitled the plaintiff to legal protections against discrimination.1 7 7 The court in Enriquez also recognized that sex discrimination laws protect against gender identity discrimination. 17" Nonetheless, many states
through the process of living in the chosen role with the help of hormones, eventually leading to sex reassignment surgery. Others seek help to learn to live with their secret feelings with less guilt and shame. See NHS Direct, Health Encyclopedia: Gender Dysphoria, http://www.nhs.uk/Conditions/Gender- dysphoria/Pages/Introduction.aspx (last visited October 4, 2014).
171. Doe v. Boeing Co., 823 P.2d 1159 (Wash. Ct. App. 1992) (interpreting WASH. REV. CODE § 49.60.180(2)), rev'd, 846 P.2d 531 (Wash. 1993).
172. Doe, 846 P.2d at 538. 173. Id. 174. HUNTER, supra note 122, at 172. 175. Goins v. W. Grp., 635 N.W.2d 717, 723 (Minn. 2001) (finding that employer was not obligated to
allow employee to use female restroom until after sexual reassignment surgery). However, the plaintiff in this case did not argue that hormone therapy had altered her sex. Therefore, this holding addresses what an employer's obligations are before sexual reassignment occurs but does not address how much medical treatment is necessary to trigger such a change. See id.
176. Smith v. City of Jacksonville Corr. Inst., Fla. Human Relations Comm'n, No. 88-5451, 1991 WL 833882, at *1 (1991).
177. Enriquez v. W. Jersey Health Systems, 777 A.2d 365, 376 (N.J. 2001). 178. Id. at 373. The Massachusetts Supreme Judicial Court has also held that a transgender employee
who refused to dress like a man was discriminated against because of sex stereotyping and on the basis of a disability. See Lie v. Sky Publ'g Corp., 15 Mass. L. Rptr. 412, 2002 WL 31492397 (Mass. Super. Ct. 2002) ("It cannot be said that transsexuals have a classically stigmatizing condition that sometimes elicits reactions based solely on prejudices, stereotypes, or unfounded fear. Thus, the plaintiff has established a prima facie case of discrimination on the basis of handicap.").
2015] 127
128 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
still do not allow claims under disability statutes, usually pointing to the fact that a transgender condition does not affect the major life activity of working.1 79
Thus, state disability laws, like other forms of recourse for transgender individuals, present a weak substitute for state laws that expressly outlaw discrimination on this basis.
III. EMPLOYMENT DISCRIMINATION IN PROVISION OF EMPLOYMENT BENEFITS
Many LGBT individuals face discrimination in securing employment benefits. This discrimination typically takes two forms. First, discrimination can directly limit access to medical benefits needed by LGBT persons. The classic example is the denial of insurance coverage for the specific medical needs of employees transitioning genders. Second, discrimination arises in the disqualification of LGBT households from family-related benefits (including family health insur- ance, survivor benefits, and time off for family illness). Denial of these benefits is often predicated on a state's refusal to recognize civil unions, domestic partnerships, or co-habitation. Only thirty-five states and the District of Columbia have laws allowing marriage licenses for same-sex couples.8 o
A. MEDICAL SERVICEs-GENDER REASSIGNMENT
Transgender persons wishing to undergo the gender reassignment process frequently face discriminatory employer health insurance policies that label the
surgery as cosmetic"" or medically unnecessary,182 and outside coverage parameters. In Mario v. P & C Food Markets, Inc.,183 an employee who was denied coverage filed suit under the federal Employee Retirement Income Security Act (ERISA) 18 4 and Title VII. 1 5 The court rejected the ERISA claim,
finding that the plaintiff's mastectomy and hormone therapy were not "medically necessary."'1 6 The court's ruling was based upon controversy within the medical community regarding the efficacy of that particular treatment plan.18 7 Much of the controversy is rooted in ignorance and bias against transgender persons. The Mario presumption stands in sharp contrast with the prevailing standard for
179. See Summer v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 477 (Iowa 1983) (finding that transsexual status does not prohibit person from performing major life activity and therefore transsexuals are not disabled).
180. Human Rights Campaign, Marriage Equality & Other Relationship Recognition Laws (Dec. 2, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/marriage-equality. pdf.
181. See Davidson v. Aetna Life & Cas. Ins. Co., 420 N.Y.S.2d 450 passim (N.Y. Sup. Ct. 1979). 182. See Mario v. P & C Food Mkts. Inc., 313 F.3d 758 passim (2d Cir 2002). 183. See id. at 762. 184. Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1132, 1140 (2010). 185. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17 (2010). Plaintiff also
sought a remedy under the New York Human Rights Law (Human Rights Law, N.Y. Exec. Law §§ 296-301 (McKinney 2010)), but did not properly preserve the claim. Mario, 313 F.3d 758.
186. See Mario, 313 F.3d at 764-766. 187. Id. at 766.
[Vol. XVI: 103
EMPLOYMENT DISCRIMNNATION
Medicaid and Medicare beneficiaries; those plans have no blanket denial, but rather deny or extend coverage on a case-by-case basis.88
The prevalence of coverage denials under private plans is unclear, due to a relative lack of case law on the matter. Similarly, private dissemination of Family Medical Leave Act (FMLA) statistics for recovery from gender reassignment surgeries is difficult to assess.189 The reason for the lack of cases is unclear, as private employee insurance plans provide coverage at similar rates.1 90 Perhaps transgender employees do not see the courts as an effective tool for procuring assistance against private employers. In stark contrast, cases adjudicating claims for Medicaid and Medicare denials of reassignment services are plentiful,1 91 as are cases articulating the government's responsibility to provide prisoners with access to reassignment services.192
B. FAMILY-RELATED BENEFITS
1. Equal Protection Claims
Since the 1970s, LGBT government employees have been bringing claims in attempts to access family-based employment benefits such as family sick leave,193 partner health insurance,194 employee trust fund benefits for family members,195 and other benefits.196 Government employees most frequently employ federal and state equal protection clauses as their method of attack, as the state action requirement is easily met. 1 97
a. Importance of the Definition of the Class. The most telling legal distinction between successful and unsuccessful claims is the particular court's definition of
188. See Charles Thomas Little, Transsexuals and the Family Medical Leave Act, 24 J. MARSHALL J. COMPUTER & INFO. L. 315, 352 n.45 (2006).
189. See, e.g., Sanders v. May Dep't. Stores Co., 315 F.3d 940, 944 n.4 (8th Cir. 2003). The Sanders court declined to determine whether gender reassignment surgeries qualified as a "serious health condition" for FMLA purposes. The court operated on the assumption that it qualified.
190. Transgender-Inclusive Benefits for Employees and Dependents, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/resources/entry/transgender-inclusive-benefits-for-employees-and-dependents (last vis- ited Oct. 4, 2014).
191. See Charles Thomas Little, Transsexuals and the Family Medical Leave Act, 24 J. MARSHALL J. COMPUTER & INFO. L. 315, 352 n.45 (2006).
192. See, e.g., Fields v. Smith, 712 F Supp. 2d 830 (E.D. Wis. 2010). 193. See, e.g., Ross v. Denver Dep't. of Health & Hosp., 883 P2d 516 (Colo. App. 1994). 194. See, e.g., Snetsinger v. Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004). 195. See, e.g., Helgeland v. Wis. Mun., 745 N.W.2d 1 (Wis. 2008) (case dismissed on procedural
issue). 196. See, e.g., Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261 (Pa. Commw. Ct. 2008). 197. After the Supreme Court found the Defense of Marriage Act unconstitutional, same-sex spouses
became eligible for five federal benefit programs, which were previously only available to opposite-sex marriages; however, this eligibility only exists for marriages, and not civil unions or other forms of domestic partnerships. OFFICE OF HUMAN RESOURCES AT THE NAT'L INSTS. OF HEALTH, Same-Sex Spousal Benefits: Federal Benefits Extended to Legally Married Same-Sex Couples, http://hr.od.nih.govlbenefits/ domesticpartner/domesticpartner.htm (last visited Oct 5, 2014).
2015] 129
130 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
the class alleging discrimination. Courts that interpret a LGBT plaintiff's claim of a denial of benefits as an outgrowth of a state prohibition on same-sex marriage are more likely to hold that LGBT persons constitute an affected class. Such an interpretation leads courts to find an Equal Protection Clause violation far more frequently than those courts that define such a plaintiff as an unmarried co-habiting partner without respect to sexual orientation.198 For example, in Snetsinger v. Montana University System, a university's policy ran afoul of the Equal Protection Clause because it allowed unmarried cohabiting opposite-sex couples to qualify for shared insurance benefits through common law marriage- even if they did not meet that legal definition-while denying the same classification to analogous same-sex couples.1 99 As such, LGBT couples were held to be a uniquely impacted class, unfairly subject to the negative impact of a discriminatory policy.2 0 0 Similarly, the court in Alaska Civil Liberties Union v. State compared opposite-sex and same-sex couples, independent of current marital status, and asserted that one group (opposite-sex couples) could access benefits by marrying while the other (same-sex couples) could not.20 1 Using this framework, the court stated that, based on the reasoning of Romer v. Evans,
"[e]xplicitly denying benefits to public employees with same-sex domestic partners would arguably offend the Federal Constitution's Equal Protection Clause."2 0 2
By contrast, in Rutgers Council of AAUP Chapters v. Rutgers, The State University, Equal Protection claims were denied, as the court grouped same-sex partners with other ineligible family members such as an employee's parent, over-age child, and incestuous partner ineligible for marriage.203 Claims centering on sex discrimination have similarly failed, as some courts have asserted that unmarried gay and lesbian employees are treated identically.2 0 4
Because the court finds no sex-based disparity, claims are denied an intermediate level of scrutiny and are subject to rational basis scrutiny.205
b. Arguments for State Interests. Espoused state interests in claim denials are consistent among jurisdictions: administrative efficiency is almost universally offered as the justifying state interest.20 6 In Valentine v. American Airlines, the
198. See, e.g., Phillips v. Wis. Pers. Comm'n., 482 N.W.2d 121 (Wis. App. 1992); Ross, 883 P2d at 516.
199. Snetsinger, 104 P3d at 451-452. 200. Id. 201. Alaska Civil Liberties Union v. State, 122 P.3d 781, 788 (Alaska 2005). 202. Id. at 786 n.20. 203. Rutgers Council of AAUP Chapters v. Rutgers, The State Univ., 689 A.2d 828, 837 (N.J. Super.
Ct. App. Div. 1997). 204. See, e.g., Valentine v. Am. Airlines, 791 N.Y.S.2d 217 (N.Y. App. Div. 2005). 205. See, e.g., Phillips v. Wis. Pers. Comm'n., 482 N.W.2d 121, 129 (Wis. App. 1992). 206. See, e.g., Snetsinger v. Mont. Univ. Sys., 104 P3d 445, 452 (Mont. 2004); Rutgers, 689 A.2d at
833; Valentine, 791 N.Y.S.2d at 220.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
court upheld an employee's compensation death benefits denial due to the state's need for "efficient, swift and consistent" processing and benefit payment.20 7
Similarly, the Rutgers court bowed to the "state's interest in objective determinations of eligibility for coverage," and stated administrative efficiency guarantees more affordable health insurance for employee families.2 08 The Rutgers court glaringly omitted the decision's impact on the affordability of insurance for LGBT partners forced to purchase insurance privately.209 However, some jurisdictions have drawn boundaries around the affordability argument. When Alaska openly declared an interest in "cost control," pointing to the financial savings of denying family benefits to LGBT employees, the Alaska Civil Liberties Union court nevertheless found an Equal Protection violation.2 10
Of course, state interests in promoting and protecting traditional heterosexual marriage are also cited as justifications for challenged policies.2 11 In Alaska Civil Liberties Union, the court called such an interest "legitimate" yet irrelevant in cases that focused on the government's role as an employer rather than a creator of public policy. 2 1 2 Within the employer role, the means-to-ends fit was not sufficient.2 13 More recently, arguments regarding marriage and family protection have been rejected as "not grounded in a sufficient factual context."2 14 In Gil v. Office of Personnel Management, the court rejected the "protection of marriage" interest, pointing to studies declaring children from LGBT homes are as well adjusted as children from heteronormative homes.2 15 Distinguishing between opposite-sex marriage and LGBT partnerships, the court said, was the essence of an Equal Protection violation.2 16
2. Anti-Discrimination Statute Claims
LGBT employees have also attacked discrimination in family benefits under state non-discrimination statutes, executive orders, and administrative rules.21 7
These attacks have employed various approaches, including analyses as to marital status,2 18 sexual orientation,2 19 and sex.2 2 0
207. Valentine, 791 N.Y.S.2d at 221. 208. Rutgers, 689 A.2d at 833. 209. Id. 210. Ala. Civil Liberties Union v. State, 122 P3d 781, 791 (Alaska 2005). 211. See, e.g., id. at 792-793. 212. Id. at 793-94. 213. Id. 214. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 387 (D. Mass. 2010). 215. Id. at 388. 216. Id. 217. See, e.g., Ross v. Denver Dep't of Health & Hosp., 883 P.2d 516 (Colo. App. 1994); Tanner v. Or.
Health & Sci. Univ., 971 P.2d 435 (Or. Ct. App. 1998). 218. See, e.g., Univ. of Ala. v. Tumeo, 933 P.2d 1147 passim (Alaska 1997). 219. See, e.g., Ross, 883 P.2d 516 passim. 220. See, e.g., Tanner, 971 P2d 435 passim.
2015] 131
132 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
a. Court Analyses of Discriminatory Classes. The courts' analyses of statutory claims often mirror the variation in Equal Protection cases involving discrimina- tion against a clearly-defined class. Tanner v. Oregon Health and Science University held that benefit denials to LGBT employees violated the Oregon Constitution's prohibition of the denial of privileges and immunities among citizens.2 21 In contrast, the Phillips v. Wisconsin Personnel Commission court upheld an administrative agency decision limiting benefits despite an anti- discrimination provision covering marital status, sexual orientation, and gen- der.22 2 The court wrote that, absent a clear contradiction to legislative intent, the court was bound to defer to the agency's reasonable interpretation, even if another conclusion was equally reasonable.22 3
Employees forced to marry outside their jurisdiction of residence are now using anti-discrimination statutes to seek recognition of their marriage at home.224 Such recognition can occasionally be parlayed into a granting of family benefits.2 25 For instance, in Martinez v. County of Monroe, an employee used a New York statute to win New York State's recognition of her Canada-granted same-sex marriage, thus qualifying her for spousal health care benefits.2 2 6
Other plaintiffs have, so far, unsuccessfully petitioned courts to use anti- discrimination provisions as an interpretive guide.22 7 The Rutgers plaintiffs argued that, in light of an anti-discrimination statute covering marital status and sexual orientation,2 28 excluding domestic partners from the term "dependents" (defined to include spouses) was frustrating legislative intent to "provide comprehensive health benefits for eligible public employees and their families at tolerable cost."2 2 9 The court rejected the argument, declining to expand the statute's plain meaning.2 30
b. Barriers to Anti-Discrimination Statute Claims. Many states exempt em- ployee benefit discrimination from their anti-discrimination statutes, undercut- ting LGBT employees' benefit claims.2 31 For example, an Oregon statute explicitly provides an affirmative defense for discriminatory benefit provisions,
221. Id. at 447. 222. Phillips v. Wis. Pers. Comm'n., 482 N.W.2d 121, 121 (Wis. App. 1992). 223. Id. at 125. 224. See, e.g., Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (N.Y App. Div. 2008). 225. Id. 226. Id. However, it is important to note that in 2011, New York enacted the Marriage Equality Act, so
this process is now unnecessary. Marriage Equality Act, 2011 N.Y. Sess. Law Ch. 95 (A. 8354) (McKinney).
227. See, e.g., Hinman v. Dep't of Pers. Admin., 167 Cal. 3d 516, 530 (Cal. Ct. App. 1985). 228. The statute, N.J. STAT. ANN. 10:5-12, has since been expanded to include domestic partners as a
status protected from discrimination. 229. Rutgers Council of AAUP Chapters v. Rutgers, The State Univ., 689 A.2d 828, 831 (N.J. Super.
Ct. App. Div. 1997). 230. Id. 231. See, e.g., id. at 832.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
making discrimination actionable only when it is part of a "subterfuge" to evade the purposes of the fair employment statutes.232 Because benefits were equally denied to heterosexual domestic partners, state courts have found no such subterfuge.2 33 Another example is that, after the Alaska Supreme Court held any denial of benefits to violate the state's human rights statutes prohibiting discrimination based on marital status,2 34 the state legislature reacted by passing an explicit exemption for health and retirement benefits which were granted exclusively to married employees.23 5 A final example of this is the decision of the New York Court of Appeals that "held that the state constitutional provision granting the legislature broad and unencumbered authority to enact laws for the protection of employees precludes any attack on workers' compensation statutes based on any other provision of the . . . [c]onstitution."2 36
c. Challenges to Validity of Non-Discrimination Provisions. Anti-LGBT rights activists have also challenged the validity of such non-discrimination provisions, albeit without much success.2 37 In Hartman v. City of Allentown, taxpayers, landlords, and business operators challenged the city's authority to enact a non-discrimination statute. The court found that the act was neither preempted nor beyond the home rule powers of the city.2 38 Similarly, in Devlin v. City of Allentown, city residents challenged the municipality's ability to enact a non-discrimination measure and to provide health insurance benefits to domestic partners of gay and lesbian employees.239 The court found both measures allowable.24 0
3. Explicit Grants of Same-Sex Partner Benefits for Government Employees
a. State and Local Government Employees. In numerous cities and states, legislatures and executives are extending benefits to same-sex partners of government employees. Often, they cite the need to remain competitive in attracting employees,2 4 1 particularly LGBT employees that increase diversity in the government workforce, as reason for the extensions.24 2 Currently, twenty- three states and the District of Columbia provide state employees with domestic partner benefits, and three additional states "employees are provided with
232. Tanner v. Or. Health & Sci. Univ., 971 P.2d 435, 443-44 (Or. Ct. App. 1998). 233. Id at 444. 234. Univ. of Alaska v. Tumeo, 933 P.2d 1147, 1156 (Alaska 1997). 235. ALASKA STAT. § 18.80.220(c)(1) (2010). 236. Valentine v. Am. Airlines, 791 N.YS.2d 217, 219 (N.Y App. Div. 2005). 237. See, e.g., Devlin v. City of Phila., 862 A.2d 1234 (Pa. 2004); Hartman v. City of Allentown, 880
A.2d 737 (Pa. Commw. Ct. 2005). 238. Hartman, 880 A.2d 737. 239. Devlin, 862 A.2d 1234. 240. Id. 241. See, e.g., Slattery v. City of New York, 686 N.YS.2d 683, 692 (N.Y Sup. Ct. 1999). 242. See, e.g., Tyma v. Montgomery Cnty., 801 A.2d 148, 150 (Md. 2002).
2015] 133
134 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
benefits based only on marriage, and same-sex spouses are eligible for benefits."24 3
i. Recipients of Benefits. Normally, employment benefits are granted to any employee of the government entity; however, some municipalities have limited or extended the grants. 4 For example, the city of San Francisco prohibited government contracts with employers whose benefit policies differentiated by marital status.25 On the other end of the spectrum, the Board of Education of the City of Chicago granted spousal health benefits to domestic partners of school employees only when the partner was of the same sex, leading to equal protection challenges from employees with long-term heterosexual domestic partners.t Judge Posner, writing for the Seventh Circuit Court of Appeals, rejected the claim, finding that the policy was rationally related to the board's legitimate goal of attracting LGBT teachers to provide support for LGBT students.t In an anomalous case, the State of New York granted worker's compensation death benefits to the domestic partners of employees killed in the September 11, 2001, attacks, but to no others.24 8
ii. Challenges to Benefit Grants. Benefit grants have been challenged vehemently. Opponents of LGBT rights have challenged the scope of home rule authority and preemption by the state. Courts have consistently upheld the authority of these governmental bodies to enact such provisions.249
However, Lilly v. City of Minneapolis, a case in which the court limited the city's provision powers to those expressly listed by statute, is an exception; largely due to a lack of independent authority for home rule cities in Minnesota.2 50 In Austin, Texas, gay rights opponents were able to invalidate benefit grants through a successful referendum amendment, which was then upheld by the Texas Court of Appeals over Equal Protection, anti-discrimination, and contract challenges brought by effected employees.25 1
243. HUMAN RIGHTS CAMPAIGN, STATEWIDE EMPLOYMENT LAWS & PoLICIES 1 (2014), available at http://hrc-assets.s3-website-us-east- 1.amazonaws.com//files/assets/resources/statewideemployment 10-2014.pdf.
244. See, e.g., Air Transp. Ass'n. of Am. v. City & Cnty. of S.F., 266 F.3d 1064 (9th Cir. 2001); Irizarry v. Bd. of Educ. of Chi., 251 F.3d 604 (7th Cir. 2001).
245. See Air Transp. Ass'n., 266 F.3d 1064. 246. Irizarry, 251 F.3d 604. 247. Id. at 611. 248. Valentine v. Am. Airlines, 791 N.Y.S.2d 217 (N.Y. App. Div. 2005). 249. See, e.g., Schaefer v. City & Cnty. of Denver, 973 P2d 717 (Colo. App. 1998); Lowe v. Broward
Cnty., 766 So.2d 1199 (Fla. Dist. Ct. App. 2000); Crawford v. City of Chi., 710 N.E.2d 91 (111. App. Ct. 1999); Ralph v. City of New Orleans, 4 So.3d 146 (La. Ct. App. 2009); Tyma v. Montgomery County, 801 A.2d 148 (Md. 2002).
250. Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. Ct. App. 1995); see also City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995).
251. Bailey v. City of Austin, 972 S.W.2d 180 (Tex. Civ. App. 1998).
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
A common method of attacking benefit grants has been to argue violations of state marriage amendments and statutes prohibiting same-sex marriage.2 52 The language of the particular amendment or statute is often determinative.2 5 3 For example, Michigan's amendment refers to marriage "or similar unions," which the state high court read to include domestic partnerships and invalidated benefit grants as externally discriminatory.254 In Leskovar v. Nickels, the court distin- guished the language in the Michigan statute from its own Washington state statute.2 5 5 As such, they held a health benefit grant to same-sex partners to be a limited extension of employment benefits, compatible with the state's ability to regulate the entire institution of marriage.2 56 Other courts evaluate whether, in practice, the benefit grants turn the partnership into a marriage. For example, courts in Alaska2 5 7 and Florida have held that a limited grant of benefits is not equivalent to the "plethora of rights and obligations that accompany traditional marriage."258
b. Impact of Federal Defense of Marriage Act. Early in the last decade, progress in federal law relating to LGBT employment benefits was slow, largely stymied by the Defense of Marriage Act (DOMA), passed in 1996.259 DOMA required all federal laws referring to a "spouse" be limited to an opposite-sex spouse.2 6 0 This interpretation of "spouse" governed federal laws such as the Family Medical Leave Act (FMLA), which guarantees numerous employment benefits, including leave to care for family members and certain social security benefits for an employee's spouse.261 DOMA also governed federal tax provi- sions.2 6 2 Thus, same-sex partner benefits are taxed as income, which can amount to a significant tax penalty.2 6 3
However, from 2009 to 2014, there has been rapid change in this area of law. The Department of Labor announced that it would interpret the FMLA language
252. See, e.g., Nat'l Pride at Work, Inc., v. Governor of Mich., 748 N.W.2d 524 (Mich. 2008); Heinsma v. City of Vancouver, 29 P.3d 709 (Wash. 2001).
253. See, e.g., Nat'l Pride at Work, Inc., 748 N.W.2d 524; Leskovar v. Nickels, 166 P.3d 1251 (Wash. Ct. App. 2007).
254. Nat'1 Pride at Work, Inc., 748 N.W.2d at 533-535. 255. Leskovar, 166 P.3d at 1256. 256. Id. 257. Ala. Civil Liberties Union v. State, 122 P3d 781, 788 (Alaska 2005). 258. Lowe v. Broward Cnty., 766 So.2d 1199, 1208 (Fla. Dist. Ct. App. 2000). 259. Defense of Marriage Act of 1996, 1 U.S.C. § 7 (2010), held unconstitutional by United States v.
Windsor, 133 S.Ct. 2675 (2013). 260. Id. 261. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 248 (D. Mass.
2010). 262. I.R.S. P L. R. 9850011 (Sept. 10, 1998). 263. Id. Some states have enacted tax exemptions for state taxes, but these do not affect federal taxes.
2015] 135
136 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW
to allow an employee time off to care for a partner's child.2 64 However, this change did not alter the definition of spouse.2 65 Several federal courts also issued important decisions regarding DOMA's applicability in this area. In Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services, the Massachusetts U.S. District Court agreed that because of DOMA, the federal government could not interpret "spouse" to include a married same-sex partner.2 66 However, in aggregate these cases hold that this application of DOMA is unconstitutional under the Equal Protection Clause, the 10th Amendment, and the Spending Clause.2 67 The court adamantly rejected every proffered state interest in enacting DOMA, including administrative efficiency, preservation of marriage, and avoidance of a contentious social issue.268
Another pair of cases from the Ninth Circuit addressed similar questions, one requiring a reinterpretation of DOMA and the other declaring it unconstitutional. In re Golinski concerned a federal judicial employee denied insurance for her wife. 2 69 After OPM denied her application for coverage, the Ninth Circuit granted her an award under the Back Pay Act and ordered that her spouse be enrolled in the insurance plan.2 70 To avoid what the court hinted would be a ruling of DOMA's unconstitutionality if tested under the Equal Protection Clause, it ordered OPM to interpret the specified family member requirements as a minimum.27 1 It then held the anti-discrimination provision covering Golinski required that her same-sex spouse be provided with coverage.27 2 In re Levenson addressed a very similar fact pattern, but another Ninth Circuit court disagreed with the minimum requirements approach.27 3 Instead, this case reached the constitutional issue and invalidated DOMA under the Due Process Clause.2 74
In February 2011, the Obama administration and Attorney General Eric Holder announced that while the administration would continue to enforce, it would no longer defend Section 3 of DOMA in court, deeming it a violation of the Fifth Amendment's Equal Protection Clause.27 5 The Act contains explicit language defining marriage as "between one man and one woman, as husband and
264. News Release, U.S. Dep't of Labor, U.S. Department of Labor clarifies FMLA definition of 'son and daughter' (June 22, 2010), http://www.dol.gov/opalmedialpress/WHDIWHD20100877.htm#. UKkQn4UrNXI.
265. Id. 266. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010); Massachusetts v. U.S. Dep't
of Health and Human Servs., 698 F. Supp. 2d 234, 236 (D. Mass. 2010). 267. Id. 268. Id. 269. In re Golinski, 587 F.3d 956, 957 (9th Cir. 2009). 270. Id. at 958-59. 271. Id. at 958. 272. Id. 273. In re Levenson, 560 F.3d 1145, 1149 (9th Cir. 2009). 274. Id. at 1151. 275. Letter from Eric Holder, United States Attorney General, to John Boehner, Speaker of the United
States House of Representatives (Feb. 23, 2011), available at http://www.scribd.com/doc/49404879/ Attorney-General-Holder-s-Letter-to-John-Boehner-on-DOMA-Appeal.
[Vol. XVI: 103
EMPLOYMENT DISCRINNATION
wife." 276 This significant victory for LGBT families was mitigated by the administration's stipulation that Congress could defend the section in lieu of the administration. Speaker of the House John Boehner responded less than two weeks later that he would, in fact, continue to defend the section.27 7
In June 2013, the Supreme Court found section 3 of DOMA to be unconstitu- tional.2 78 The Supreme Court held DOMA's definition of marriage was "unconsti- tutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."2 7 9After this decision, states began passing laws allowing marriages between same-sex partners, which led to eligibility for five different federal benefits.28 0 However, some states only allow civil unions, eliminating eligibility for those spouses, and many states still have yet to pass laws allowing same-sex marriage or civil unions.28 1
IV. LOOKING FORWARD
Most federal courts do not recognize claims for sexual orientation and gender identity discrimination under Title VII. However, courts are increasingly willing to extend Title VII's protections to LGBT plaintiffs if the discrimination they experience results from a failure to conform to sex and gender stereotypes. Still, many courts require plaintiffs to carefully craft arguments that downplay their actual or perceived sexual orientation, and instead focus on their external behavior.
Many advocacy organizations are now focusing their efforts on securing Congressional passage of the Employment Non-Discrimination Act (ENDA). 2 82
In 2007, there were two versions of ENDA; the original version would explicitly prohibit workplace discrimination based on a person's sexual orientation and gender identity, and the later version, introduced after the House leadership determined there would not be enough support to pass the original transgender- inclusive version of the bill, only protects sexual orientation.2 8 3 The House versions of the bill exempt religious institutions, businesses with fewer than fifteen employees, and the armed services.28 4 As a co-sponsor of the original bill, former Representative Chris Shays (R-Conn.) indicated his support by saying, "[T]his is common-sense legislation. Working men and women should be judged
276. Defense of Marriage Act of 1996, 1 U.S.C. § 7 (2010), held unconstitutional by United States v. Windsor, 133 S.Ct. 2675 (2013).
277. Associated Press, Boehner Launches Effort to Defend Gay Marriage Ban, Fox NEWS (Mar. 4,
2011), http://www.foxnews.com/politics/2011/03/04/boehner-launches-effort-defend-gay-marriage-ban.
278. United States v. Windsor, 133 S.Ct. 2675 (2013). 279. Id. at 2695. 280. See Marriage Equality & Other Relationship Recognition Laws, supra note 181.
281. Id. 282. See, e.g., Employment Non-Discrimination Act, HUmAN RIGHTS CAMPAIGN, http://www.hrc.org/
campaigns/employment-non-discrimination-act (last visited Oct. 5, 2014).
283. Id. 284. Id.
2015] 137
138 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XVI:103
on the basis of their performance at work. They should not have to fear being fired because of their sexual orientation."28 5 The biggest push for ENDA occurred on November 7, 2007, when the Housed passed a version of ENDA, H.R. 3685, by a vote of 235 to 184, marking the first time a version of ENDAhad passed either chamber of Congress.2 86 The latest version of ENDA was introduced in the House by Representative Barney Frank (H.R. 1397) and in Senate by Senator Jeff Merkley (S. 811).287 In June 2012, a hearing on ENDA was held by the Senate Committee on Housing, Employment, Labor, and Pensions, which included the first Senate testimony by a transgender indi- vidual.28 8 On November 7, 2013, the Senate voted in favor of passing ENDA (S.815 As Amended) with a 64-32 vote.289 The House has not yet voted in favor of ENDA.
In light of the exclusion of explicit sexual orientation or gender identity protections under current federal anti-discrimination laws, many plaintiffs must seek relief under state and local laws. However, a handful of court decisions have extended some Title VII protections to LGBT persons.2 90 The Schroer v. Billington decision could mean that through the principle of stare decisis, transgender individuals will one day be protected from employment discrimina- tion under Title VII's protection against discrimination "because of sex." Until
285. Press Release, Human Rights Campaign, Reps. Barney Frank, Deborah Pryce, Tammy Baldwin, Chris Shays Introduce Employment Non-Discrimination Act (Apr. 23, 2007), available at http://www. hrc.org/press-releases/entry/reps.-barney-frank-deborah-pryce-tammy-baldwin-chris-shays-introduce- employ.
286. Employment Non-Discrimination Act of 2009, H.R. 3685, 110th Cong. 1st Sess. (2007). 287. H.R. 1397, 112th Cong. (2011); S. 811, 112th Cong. (2011).263A. Full Committee Hearing-
Equality at Work: The Employment Non-Discrimination Act (June 12, 2012), available at http://www. help.senate.gov/hearings/hearing/?id=bc503bd3-5056-9502-5da9-beea5048efc9.
288. Full Committee Hearing-Equality at Work: The Employment Non-Discrimination Act (June 12, 2012), available at http://www.help.senate.gov/hearings/hearing/?id=bc503bd3-5056-9502-5da9- beea5048efc9.
289. U.S. Senate, U.S. Senate Roll Call Votes 113th Congress-ist Session, (Nov. 7, 2013), available at http://www.senate.gov/legislative/LIS/roll calllists/rollcallvotecfm.cfm?congress = 113 &session = 1&vote=00232.
290. See Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 216 (1st Cir. 2000) (reinstating an Equal Credit Opportunity Act claim on behalf of biologically male plaintiff who alleged that he was denied an opportunity to apply for a loan because he was not dressed in "masculine attire"); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000) (noting that "sex stereotyping may constitute evidence of sex discrimination"); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (noting that Title VII prohibits "discrimination because one fails to act in the way expected of a man or woman"); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) ("Just as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity" (citing Price Waterhouse, 490 U.S. at 250-51)). Compare Smith v. City of Salem, Ohio, 378 F.3d 566, 570 (6th Cir. 2004) (finding the plaintiff able to prove case of sex stereotyping, based on Price Waterhouse, because of his nonconforming behavior and appearance), with King v. Super Serv., Inc., 68 Fed. Appx. 659, 664 (6th Cir. 2003) ("the animosity directed towards the plaintiff because of his apparent sexual orientation is . . . different from discrimination on the basis of sex").
2015] EMPLOYMENT DISCRIMINATION 139
the Supreme Court resolves the issue, however, the circuit courts will remain split on whether Title VII's protection against discrimination "because of sex" applies to sexual orientation and transgender discrimination. Meanwhile, a growing number of states and municipalities have implemented explicit protections against sexual orientation discrimination in employment. However, some states and municipalities continue not to provide such protections, and even more leave transgender individuals unprotected. Fortunately, the growing number of states and municipalities extending protection coupled with the recent direction of the Obama Administration places pressure on Congress and other states to enact protective legislation. Whether this pressure results in federal legislation, a cascade of state and municipal protection, or an impetus for a Supreme Court decision remains to be seen. Same-sex marriage laws, administrative agency decisions, and Obama's Executive Order are expected to expand protections available to the LGBT community; however, the benefits have not yet materialized.
