The Employment Non-Discrimination Act (ENDA), a proposed bill in each Congress since 1994, is about to fail for what, by my count, would be the 11th time.  The bill was proposed to amend Title VII to treat lesbian, gay, bisexual and transgender (LGBT) applicants and employees as a protected class.  As noted in a recent parallel Alert, President Obama issued Executive Order 13672 as an amendment to Executive Order 11246 on affirmative action, thus empowering the OFCCP to sanction federal contractors who discriminate on the basis of gender preference.  As written, Title VII itself does not protect such discrimination, and the future fate on ENDA in the next Congress, according to most observers, has a poor prognosis given republican domination in both the House and Senate.

That said, the EEOC is about to take a stand on this issue on grounds that cases of gender preference discrimination are covered by Title VII under “gender stereotyping”, which they feel is protected under Title VII as part of its strategic plan.  I’m skeptical that the EEOC can succeed.

To begin with, the argument follows from Macy v. Holder, EEOC, No. 0120120821, 4/20/12), a case involving the ATF, a federal agency.  Macy, a transgender individual, started working as a male, and later was denied a transfer after changing her status to female.  The ATF rejected the transfer on that basis, a rejection initially supported by an administrative judge (AJ) but overturned by an appeal to the EEOC’s OFO (Office of Federal Operations).

The OFO ruling was based primarily on the Supreme Court’s ruling in Price Waterhouse v. Hopkins (1989) [490 U.S. 228] where Ann Hopkins, who was applying for promotion to partner, was subject to a steady diet of derogatory stereotypical remarks by the partners that evaluated her.  For example, Hopkins was criticized for being to macho, that she need to go to charm school, that she was overcompensating for being a woman, and several others, among several other sex-based slights.  The EEOC is hoping to extend the logic in the Macy ruling to gender preference cases involving issues relating to mistreatment of gay, lesbian and bisexual applicants and employees. There are three reasons why I see this as an uphill battle:

First, the Macy ruling was not a federal court ruling, and never will be.  Macy could have taken the case directly to federal district court but probably chose the EEOC route because, unlike OFCCP cases, OFO appeal rulings are not subject to federal court review, where OFCCP appeal rulings are.  I think this is a weakness of the system and a major reason why attorneys filing cases against federal agencies, particularly class action suits, eschew the federal court route in favor of the EEOC route.  As an aside, I think there are attorney groups out there who are literally ganging up on federal agencies hoping that claims that would likely fail in federal district court can achieve success with the EEOC’s AJ/OFO procedures.

Second, I think it’s interesting that one arm of the EEOC (that prosecutes cases against non-federal entities) is basing a proposal on a ruling that the other arm (the judges claims against federal agencies) has made.  I’ve never seen this before.  If anyone else has, I’d like to see it for myself.

Third, the Supreme Court’s ruling in Oncale v. Sundowner (1998) [523 U.S. 75] makes it clear that same-sex harassment is illegal as long as the harassment is “because of sex.”  Justice Scalia, who wrote the Oncale ruling, left basically three possibilities that “because of sex” proves: that the same-sex harassment was motivated by sexual desire (that eliminates the same sex harasser who is not a gay or lesbian); that there is a general hostility toward people of the same gender; or there is favoritism toward individuals of the opposite sex.

In short, regardless of how you might feel about discrimination based on gender preference, there is little chance in my opinion that there will be a Title VII route unless ENDA or a similar law passes.  However, that said, employers should be aware of state and/or municipal laws that make gender preference discrimination illegal.  What I recommend is that employers focus beyond what is technically legal versus illegal and focus instead on civility policies that sanction harassment and other forms of discrimination unacceptable, regardless of the reasons for it.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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