Until last year, it was at least questionable whether Title VII of the Civil Rights Act of 1964 protects lesbian, gay, bisexual, and transgender (LGBT) individuals from sex discrimination based upon their sexual orientation or transgenderism, which traditionally have been viewed as falling outside the scope of “sex.” In 2013, the U.S. Equal Employment Opportunity Commission (EEOC) took the position, in the landmark decision of Macy v. Holger, that transgender employees are covered by Title VII under the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which recognized sex-stereotyping as a form of sex discrimination under Title VII. That decision did not address similar coverage of gay and lesbian employees.
In a recent decision involving a gay male, the U.S. District Court in Washington, D.C., has refused to dismiss a former U.S. Library of Congress employee’s claim under Title VII that he, as a homosexual, suffered sex-stereotyping discrimination by his former boss based upon the boss’s view of acceptable gender roles. TerVeer v. Billington. The ex-employee’s claim is that the boss unlawfully discriminated against him in violation of Title VII under Hopkins.
Whether on appeal, that decision, or any similar decision will find affirmation, rejection or limitation by a higher court is difficult to say. What employers need to know, is that gay and lesbian employees may have legal protections that go beyond those provided only by state sexual orientation discrimination laws and that, at a minimum, discrimination against LGBT employees, as a larger class, now may result in expensive federal litigation in which the EEOC may participate actively (i.e., bring the suit) or at least offer support.