The End Around

By: Sean Ferguson

The Equal Employment Opportunity Commission (EEOC) recently argued in an amicus brief to the 11th Circuit that sexual orientation is already rolled into the primary categories of a Title VII action.[1]  The traditional protected categories written into Title VII of the Civil Rights Act of 1964 are “race, color, religion, sex, or national origin.”[2]  The EEOC argues that because the Supreme Court of the United States has found that “discrimination based on gender stereotypes violates Title VII,” then failing to live up to a gender stereotype is similarly discriminatory.[3]  The brief suggests the matter has been long decided.[4]

Certain states do not see this matter as settled, acknowledge a gray area in sexual orientation and gender identity in the text of Title VII, and have chosen to fill that gap with state legislation.[5]  New York’s guidelines indicate it is “unlawful to refuse to hire, promote, or fire an individual because of a person’s actual or perceived [gender identity].”[6]  California similarly has a state law making it an “unlawful employment practice . . . [f]or an employer, because of . . . gender identity [or] sexual orientation . . . to refuse to hire or employ the person . . . or to discharge the person from employment.”[7]

The Supreme Court in Cleburne was given an opportunity to add intellectually disabled persons into the categories of protection given strict scrutiny and declined.[8]  While the court empathized with the “plight” of these disabled persons, it noted that their protection was “very much a task for legislators . . . and not by the perhaps ill-informed opinions of the judiciary.”[9]  With the plight of those with non-traditional sexual orientation, various states legislatures have clearly taken up that task.[10]

The EEOC’s stereotype argument comes from the decision in Price Waterhouse v. Hopkins.[11]  Hopkins involved a female employee who was not promoted for failing to live up to a “sex stereotype.”[12]  However, the court explicitly views the use of a “sex stereotype” as symptomatic of sex discrimination, and not discrimination itself.[13]  The discrimination was in not hiring the qualified female applicant for not being feminine enough.[14]  The discrimination was not passing on the female applicant because of her sexual orientation or gender preference.  To suggest that the defining characteristic of a person’s sexual orientation or gender preference is whether certain stereotypes are met is wildly underinclusive.  Further, it endorses the very stereotypes it decries.

The purpose of Title VII is to “eradicat[e] discrimination based on protected characteristics and to promote facially neutral decision making and status-blind employment practices.”[15]  This summation finds support in the text of the Act itself.  When defining “on the basis of sex” the Act notes the various idiosyncrasies of sex, such as pregnancy, “shall be treated the same for all employment-related purposes.”[16]  The goal of the Act is to prevent discrimination and allow employment on the merits.  That goal cannot be said to be furthered by writing in stereotypes between the lines.  The only solution appears to be to avoid any kind of end around and instead to leave this task to legislators.

[1] Stephanie Francis Ward, Civil Rights Act’s sex-discrimination ban includes orientation, argues EEOC in amicus brief, ABA Journal, (Jan. 8, 2016).

[2] 42 U.S.C. § 2000e-2.

[3] Br. of the EEOC as Amicus Curiae in Support of Appellant and Reversal, 7.

[4] Id.

[5] See, e.g., N.Y.C. Admin Code § 8-102(23) (N.Y. Comm’n on Human Rights).

[6] § 8-102(23).

[7] Cal. Gov’t Code § 12940(a) (Fair Housing and Employment Act).

[8] City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985)

[9] Id. at 442-43.

[10] See generally § 8-102(23); § 12940(a).

[11] Br. of the EEOC, 2.

[12] Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).

[13] Id.

[14] Id.

[15] Damon Ritenhouse, A Primer on Title VII: Part One, GPSolo eReport, (last visited Feb. 26, 2016).

[16] 42 U.S.C. § 2000e(k).


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