Sexual Orientation and Transgender or Gender Identity Discrimination

Title VII of the Civil Rights Act of 1964 is the primary federal source of anti-discrimination protection for employees.  In 2020, in Bostock v. Clayton County, 140 S. Ct. 1731, 1741 (2020), the Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination based on a person’s sexual orientation or gender identity.  As a result, after many years anxiety and uncertainty about this question, it is now clear that federal law protects LGBTQ+ people from workplace discrimination across the country. 

In its Bostock decision, however, the Supreme Court did not address some of the more common workplace issues faced by transgender and non-binary employees in particular, including access to sex-specific facilities like restrooms and locker rooms, or the application of gender-specific dress codes.  These questions are addressed, however, in many state and local nondiscrimination laws, and therefore often provide stronger and clearer protection for LGBTQ+ workers.  These state and local laws also tend to apply to employers who are too small to be covered by Title VII (i.e., employers with fewer than 15 employees). 

I. Protections Provided by Title VII

A. What Protection from Discrimination Does Title VII Provide to LGBTQ+ Employees?

1.  Discrimination Based on Sexual Orientation and Gender Identity

For decades after Title VII’s passage in 1964, courts held that this law, the main federal law protecting employees from discrimination, did not prohibit discrimination based on an employee’s sexual orientation or gender identity, pointing to the absence of those specific words from the statute and based on a belief that Congress did not intend to provide such protections.  Starting in the 1990s, however, courts began reconsidering that analysis and holding that the federal prohibition on sex discrimination did, in fact, provide protection to workers who experienced discrimination because they were LGBTQ+.  In 2020, the Supreme Court settled this question by clarifying that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination prohibited by Title VII because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Bostock, 140 S. Ct. at 1741.  Emphasizing that “homosexuality and transgender status are inextricably bound up with sex,” the Court reasoned that when an employer fires a man who is attracted to a man but not a woman who is attracted to a man, that means the employee’s sex is a but-for cause of his discharge.  Id.  at 1742.  Similarly, firing a transgender man who was assigned female at birth but not a cisgender woman who was assigned female at birth means that the employee’s sex plays an impermissible role in the discharge decision.  In each situation, the employer was penalizing an employee for “traits or actions that it tolerates” in an employee of the other sex.  Id. at 1741.

Previously numerous courts had found that LGBTQ+ employees could state a claim under Title VII if they were able to prove that the discrimination they suffered resulted from their failure to conform to traditional sex stereotypes.  The cases relied upon the Supreme Court’s seminal decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Court held that the accounting firm had violated Title VII when it denied Ann Hopkins a partnership because she was not feminine enough.  In some of the earlier successful LGBTQ+ cases, plaintiffs had prevailed by putting forth specific evidence about their employer’s discomfort with their non-conformity to sex stereotypes (e.g., perceived effeminate behavior of gay men, failure of transgender woman to conform to stereotypes of female appearance).  In later cases, courts began to recognize that being LGBTQ+ necessarily challenged traditional sex stereotypes, and treated discrimination on that basis as per se sex stereotyping, and thus sex discrimination.  While the Supreme Court’s decision in Bostock did not rely on the sex stereotyping theory in concluding that Title VII’s prohibition on sex discrimination reaches claims of sexual orientation and gender identity discrimination, it also did not disturb the preceding twenty years of case law holding that LGBTQ+ employees may bring sex stereotyping claims against employers when they are subjected to discrimination due to their failure to conform to gender norms or traditional sex stereotypes.  See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316-20 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 571-75 (6th Cir. 2004); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001.

Following Bostock, LGBTQ+ employees have successfully litigated claims of discrimination against their employers.  For example, in Tudor v. Southeastern Oklahoma State University, a transgender woman successfully sued her employer for denying her tenure after she informed them that she was transitioning and planning to live as her authentic, female self.  After winning a $1.65 million verdict from the jury (later reduced in accordance with applicable statutory caps on damages), the Tenth Circuit rejected the university’s arguments on appeal that Ms. Tudor could not state a claim under Title VII, noting that Bostock had completely nullified those arguments.  13 F. 4th 1019 (10th Cir. 2021).  Likewise, in Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115 (E.D. Pa. 2020), a transgender woman was allowed to proceed with claims under Title VII for discrimination due to being misgendered, prevented from using the women’s restroom, interrogated about her anatomy, subjected to more stringent dress code requirement, and kept out of the view of customers. 

Claims involving sexual orientation discrimination have also benefited from the clarity of the Bostock decision.  In Jarrell v. Hardy Cellular Tel. Co., No. 2:20-cv-00289, 2020 WL 4208533 (S.D. W. Va. July 22, 2020), the district court held that two women plausibly stated a claim for sexual orientation discrimination when, after co-workers discovered their relationship, they were subjected to harassing comments, deliberate disclosure and public disapproval of their relationship, and negative performance evaluations despite consistent performance from previous years.  Likewise, in Cimbalo v. BASF Corp., No. 3:21-cv-309 (DJH), 2022 WL 696798, at *1 (W.D. Ky. Mar. 8, 2022), the court allowed an HR employee to pursue claims of retaliation under Kentucky’s state law equivalent to Title VII for opposing discriminatory behavior by a supervisor that demonstrated “racial, sexual orientation and gender hostility.” 

Courts have also invoked Bostock to hold that Title VII and the Affordable Care Act (“ACA”) protect LGBTQ employees’ right to have their employer-sponsored insurance offer coverage for same-sex partners and gender-affirming surgeries, among other benefits.  For example, in Jimenez v. Laborer’s Welfare Fund of the Health & Welfare Department of the Construction, 493 F. Supp. 3d 671, 677 (N.D. Ill. 2020), the district court rejected a health insurance plan’s attempt to deny coverage to an employee’s same-sex spouse, observing that, after Bostock, there could be no dispute that such conduct was discrimination because of sex.  Likewise, a growing number of courts have deemed blanket exclusions on gender transition-related care within employer-provided health plans as illegal sex discrimination.  See Kadel v. Folwell, No. 1:19-cv-272, 2022 WL 17415050 (M.D. N.C. Dec. 5, 2022) (granting summary judgment to state employees on their ACA claim challenging exclusions in state healthcare plan denying coverage for transition-related health care for themselves and their dependent children); Lange v. Houston County, Georgia, No. 5:19-cv-392 (MTT), 2022 WL 1812306 (M.D. Ga. June 2, 2022) (granting summary judgment to state employee challenging exclusion of transition-related surgery from state employee health plan, holding that the exclusion “plainly discriminates because of transgender status” in violation of Title VII). 

The Supreme Court’s ruling in Bostock has provided the foundation for additional federal initiatives to protect LGBTQ+ individuals from discrimination. On January 20, 2021, President Biden signed Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which seeks to ensure that all federal agency policies, regulations, and actions are consistent with the Administration’s goals of advancing gender equity.  The Executive Order cites the Supreme Court’s ruling in Bostock that Title VII’s prohibition on sex discrimination covers discrimination on the basis of sexual orientation and gender identity, and extends Bostock’s reasoning to other laws that prohibit sex discrimination, including those related to education, health, and housing.  With this expansive understanding of gender equity, the Order instructs agencies to review all existing agency actions to ensure that they are consistent with this new framework.  Please check out the article “Gender Issues in the 2022 Workplace” by Alexis Ronickher of our firm for further discussion of post-Bostock caselaw and implications.

The Bostock decision clarified the availability of legal relief for employees experiencing discrimination on the basis of sexual orientation and gender identity, but left some issues unaddressed, including the right of transgender workers to access restrooms and locker rooms, or follow sex-specific dress code requirements, consistent with their gender identity.  While the post-Bostock caselaw on these particular questions is still in development, a number of circuit courts had addressed similar issues in the education setting pre-Bostock and had been fairly uniform in affirming the right of transgender students to use the restroom that aligns with their gender identity. See, e.g., Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020) (restroom access); Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020) (restroom and locker room access); Whitaker v. Kenosha Unified School Dist. No. 1, 858 F.3d 1034 (7th Cir. 2017) (restrooms).  At the end of 2022, however, a divided Eleventh Circuit issued an en banc decision upholding a school policy that prevented a transgender male student from using the boys’ restroom.  Adams v. School Board of St. Johns County, Florida, No. 18-13592, 2022 WL 18003879 (11th Cir. Dec. 30, 2022) (en banc).  Much of the discussion in Adams related to considerations that are specific to the school setting, however, so the impact of this decision on restroom-related disputes in the workplace should be minimal, but remains to be seen.

The Supreme Court also put off for another day answering important questions about how these protections against discrimination will be applied to employers who defend their anti-LGBTQ+ discrimination on religious or moral grounds.  While the Supreme Court has faced this issue in the context of businesses wanting the right to deny services to LGBTQ+ people notwithstanding state nondiscrimination laws prohibiting sexual orientation and gender identity discrimination, the Court has not yet squarely addressed these issues in the employment setting.  The Supreme Court’s recent cases, however, have trended toward creating sweeping exemptions for employers who classify their workers as “ministers,” which essentially places them beyond the reach of nondiscrimination laws prohibiting not only against sex discrimination (including sexual orientation and gender identity discrimination) but also discrimination on the basis of other protected categories like age and disability.  See Our Lady of Guadalupe School v. Morrisey-Berru, 140 S. Ct. 2049 (2020).  Whether an employee qualifies as a minister should be a highly fact-specific inquiry, but some courts have read the Supreme Court’s recent decisions as directing them to give religious employers nearly unfettered discretion to classify their employees as ministers.  See, e.g., Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 41 F. 4th 931 (7th Cir. 2022).  While this is a troubling development in the law, for the vast majority of jobs where there is no legitimate argument that an employee is a “minister,” the protections of Title VII should be available.

2.  Sexual Harassment by Someone of the Same Sex

Even before Bostock’s clarification of protections for LGBTQ+ workers, the Supreme Court had held that Title VII can prohibit workplace harassment by someone of the same sex if it constitutes discrimination “because of sex.”  Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).

The Oncale Court expressly held “that nothing in Title VII necessary bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”  Id. at 79. Therefore, Title VII and state anti-discrimination statutes modeled after Title VII prohibit same-sex harassment, regardless of whether the harassment arose from “proposals of sexual activity” or from “general hostility to the presence of women in the workplace.”  Id. at 80.  Thus, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”  Id.

Following the Oncale decision, the Third Circuit set forth three alternative theories by which same-sex sexual harassment can be proven under Title VII:

The first is where there is evidence that the harasser sexually desires the victim. . . . [The second is where] the harassment was caused by a general hostility to the presence of one sex in the workplace or in a particular work function. . . . [The third] by presenting evidence that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.

Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir. 2001) (emphasis added).

Other circuit courts have continued to apply the Oncale holding to conclude that same-sex harassment constitutes discrimination in violation of Title VII.  See, e.g., E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 455 (5th Cir. 2013) (quoting Oncale’s reasoning that male-on-male sexual harassment in the workplace can constitute sex discrimination and concluding that “a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (concluding that employee’s allegations of male-on-male hostile comments motivated by his sexual orientation stated a claim for sexual harassment); Dick v. Phone Directories Co., 397 F.3d 1256 (10th Cir. 2005) (remanding district court’s grant of summary judgment for employer because employee did demonstrate same-sex harassment occurred because of her sex and at least in part motivated by sexual desire, but court remanded for further determination as to whether the harassment was sufficiently severe or pervasive to create an abusive work environment).

  1. Retaliation for Opposing Discrimination on the Basis of Sexual Orientation and Gender Identity

Title VII also protects employees who have opposed discrimination or participated in Title VII processes.  Participation or opposition is not protected, however, unless it concerns discrimination that is unlawful under Title VII.  Therefore, employees who claim to have been retaliated against either for efforts to oppose or combat discrimination against themselves or their LGBTQ+ coworkers on the basis of their sexual orientation or gender identity have to show that the complained-of discrimination was prohibited under Title VII. 

B. Who Is Covered by Title VII?

Title VII does not regulate all employers, nor does it protect all employees.  For an employee to have a claim for discrimination under Title VII, the employee must work for a covered employer and must be a covered employee.

Title VII regulates private employers, state and local government employers, labor organizations, employment agencies, and the federal government (although there are different procedures to pursue a discrimination claim for federal employees).  For an employer to be covered by Title VII, however, it must have 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year.   Even if an employer employs fewer than 15 employees, it may still be considered a covered employer under Title VII if it has acted jointly with a parent or subsidiary corporation, and together their employees number more than 15.  Courts focus on factors such as the degree of interrelatedness, degree of common ownership, control, and management, and degree of centralization of personnel functions to determine whether the companies have acted jointly.

Title VII protects only employees of covered employers and some categories of workers, including the following, have particular rules governing who is protected:

  • Independent Contractors: Many courts have held that Title VII does not apply to discrimination involving an independent contractor relationship. Most courts use a common law agency test to determine whether a worker is an “employee” or an “independent contractor” for the purposes of Title VII.
  • Partners and Other Owners: Depending on the facts of a case, partners, shareholders, and directors of a business may be considered employees under Title VII. The court will consider the facts relating to the worker’s actual role within the company on a case-by-case basis.
  • Undocumented Aliens: The EEOC will not, on its own initiative, inquire into a worker’s immigration status.  However, all administrative remedies may not be available to undocumented workers.

C. What are the Procedures and Remedies for a Title VII Claim?

  1. Procedure for Non-Federal Employees

You must file a charge with the EEOC in order to seek a legal remedy for discrimination or retaliation that violated Title VII.  You must file your charge within 180 days from the date of the alleged violation in order to protect your ability to vindicate your rights under Title VII.  If you live in a state that has a state law prohibiting sex discrimination, however, this 180 day filing deadline is extended to 300 days or 30 days after you have received notice of termination of state proceedings if that date is earlier, because you are required to file a charge with the appropriate agency in your state.

The EEOC or your state agency will investigate your charge of discrimination, and if it determines your charge has merit, it will attempt to foster conciliation between you and the employer.  However, most EEOC field offices do not have the capacity to act on most complaints in a timely manner.  Regardless of the EEOC’s determination, you may bring a civil action in court after 90 days have passed since you filed your charge.

  1. Procedure for Federal Employees

You must first initiate a complaint by contacting your employing agency’s EEO counselor within 45 days of the alleged violation.  If the complaint cannot be resolved informally, you must file a formal written complaint with the agency that discriminated against you within 15 days of the notice of the EEO counselor’s failure to resolve the matter.  The agency investigation must be completed within 180 days of the date the complaint or its last amendment was filed, or within 360 days of the date the original complaint was filed, whichever is earlier.  A court action must be filed within 90 days of receipt of notice of final action on the formal written complaint.

  1. Remedies Available Under Title VII

If a court finds you have been discriminated or retaliated against in violation of Title VII, you may be entitled to remedies including:

  • Reinstatement, compelled hiring, or compelled promotion;
  • Back pay;
  • Front pay;
  • Retroactive seniority and benefits;
  • Compensatory and punitive damages (punitive damages not available against government employers); and/or
  • Attorneys’ fees and costs.

II. State and Local Laws

As of 2023, twenty-three states and the District of Columbia have laws that prohibit employers from discriminating against or harassing employees based on their sexual orientation or gender identity or expression: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington, and Wisconsin (the Wisconsin Fair Employment Act does not extend to gender identity or transgender status discrimination, but does cover claims alleging sex stereotyping, sex or gender harassment, sexual orientation discrimination, and sexual harassment).  

District of Columbia

The District of Columbia Human Rights Act prohibits any employer (except the federal government) from discriminating on the basis of sexual orientation or personal appearance (including transgender people).  Thus, in accordance with Bostock, if an employer discriminates against an applicant or an employee because of his or her sexual orientation, the employee has legal protections.  The DC Human Rights Act also protects employees who oppose discrimination or participate in the legal process to vindicate their or other employee’s rights.

If you work for a private employer and your employer has discriminated against you because of your sexual orientation or gender identity, you have one year to file a charge of discrimination with the D.C. Office of Human Rights.  

If you work for the D.C. government, you must first consult an EEO counselor within 180 days of the discriminatory act.  The EEO counselor has 30 calendar days to seek a solution on an informal basis.  You may file formal charges within 15 calendar days of your final interview with the EEO counselor and may choose to file either an administrative complaint or a civil action in a court of competent jurisdiction.

If a court finds you have been discriminated or retaliated against in violation of the DC Human Rights Act, you may be entitled to remedies including:

  • Reinstatement, compelled hiring, or compelled promotion;
  • Back pay;
  • Front pay;
  • Compensatory and punitive damages (punitive damages not available against government employers); and/or
  • Attorneys’ fees and costs.

Maryland State Law

Maryland law also prohibits certain employers from discriminating on the basis of sexual orientation or gender identity.  Covered employers include those with 15 or more employees working each day for 20 or more calendar weeks in the current or preceding calendar year.  This law does not apply when the federal government is the employer.

An employee who has a claim under Maryland law for discrimination based on their sexual orientation or gender identity must file a complaint with the Maryland Human Relations Commission within 300 days of the date of the discrimination.  The remedies available to a successful employee include:

  • Reinstatement or hiring of the employee;
  • Back pay;
  • Compensatory damages (between $50,000 and $300,000 depending on the size of the employer);
  • Punitive damages; and/or
  • Attorneys’ fees and costs.

Maryland County Laws

Some counties in Maryland provide more extensive protections to employees who face discrimination because of their sexual orientation. These counties are: Baltimore County, Howard County, Prince George’s County, and Montgomery County.

    1. Baltimore County

Baltimore County’s anti-discrimination law expands covered employers to include those with only one employee.  If you have a discrimination claim in Baltimore County, you must file a formal complaint with the Baltimore County Human Relations Commission within six months of the date of discrimination.  Suit may be filed in the state circuit court as soon as 90 days after the administrative charge is filed with the Baltimore County Human Relations Commission and must be filed within 2 years of the discriminatory act.  Punitive damages (available under Maryland state law applying to employers with more than 15 employees) are not available under this section.

    1. Howard County

Howard County’s anti-discrimination law applies to employers who have five or more full or part-time employees for 20 or more weeks in the current or proceeding calendar year. If you have a discrimination claim in Howard County, you must report your complaint to the Howard County Office of Human Rights within six months of the alleged discrimination.  Suit may be filed in the state circuit court as soon as 45 days after the administrative charge is filed with the Howard County Human Relations Commission and must be filed in the state circuit court within 2 years of the discriminatory act.

    1. Prince George’s County

Prince George’s County’s anti-discrimination law covers any employer who has employed at least one employee.  If you have a discrimination claim in Prince George’s County, you must report your complaint to the Prince George’s County Human Relations Commission within 180 days of the date the discrimination took place.  Suit may be filed in the state circuit court as soon as 45 days after the administrative charge is filed with the Prince George’s County Human Relations Commission and must be filed in the state circuit court within 2 years of the discriminatory act.

D.   Montgomery County

Montgomery County’s anti-discrimination law covers any employer who employs one or more individuals, whether the individual is compensated for her work or is a volunteer.  If you have a discrimination claim in Montgomery County, you must report your complaint to the Montgomery County Commission on Human Rights within one year of the date of discrimination.  Suit may be filed in the state circuit court as soon as 45 days after the administrative charge is filed with the Montgomery County Human Relations Commission and must be filed in the state circuit court within 2 years of the discriminatory act.

Virginia State Law

In 2020, Virginia passed legislation prohibiting certain employers from discriminating on the basis of sexual orientation or gender identity.  Covered employers include those with 15 or more employees working each day for 20 or more calendar weeks in the current or preceding calendar year, although employers with as few as 5 employees are covered under the Virginia law for purposes of unlawful discharge based on a protected status.  

An employee who has a claim under Virginia law for discrimination based on their sexual orientation or gender identity must file a complaint with the Virginia Division of Human Rights within 300 days of the date of the discrimination.  The remedies available to a successful employee include:

  • Back pay;
  • Compensatory damages;
  • Punitive damages; and/or
  • Attorneys’ fees and costs.

Virginia County Laws

Some counties in Virginia provide more extensive protections to employees who face discrimination because of their sexual orientation.  These counties include: Fairfax County and Arlington County.

  1. Fairfax County

Fairfax County’s anti-discrimination law covers any employer who employs four or more employees.  If you have a discrimination claim in Fairfax County, you must report your complaint to the Fairfax County Human Rights Commission Office of Human Rights and Equity Programs within one year of the date of discrimination.  Suit may be filed in state court no later than 180 days after the conclusion of the administrative process or not later than two years after the discrimination, whichever is later.

  1. Arlington County

Arlington County’s anti-discrimination law similarly covers any employer who employs four or more employees.  If you have a discrimination claim in Arlington County, you must report your complaint to the Arlington County Human Rights Commission Office of Human Rights and Equity Programs within 180 days of the date of discrimination. 

If you believe that you have been subjected to discrimination based on your LGBTQ+ status, contact the experienced lawyers at Katz Banks Kumin for an evaluation of your case with no further obligation.