Title VII Discrimination Protections & LGBT Employees
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Belmont Law Review Volume 6 Symposium 2018: The Modern Workplace: Contemporary Legal Issues in Employment & Labor Article 1 Law 2019 Title VII Discrimination Protections & LGBT Employees: The eedN for Consistency, Certainty & Equality Post-Obergefell Regina Hillman Follow this and additional works at: https://repository.belmont.edu/lawreview Part of the Legal Writing and Research Commons Recommended Citation Hillman, Regina (2019) "Title VII Discrimination Protections & LGBT Employees: The eN ed for Consistency, Certainty & Equality Post-Obergefell," Belmont Law Review: Vol. 6 , Article 1. Available at: https://repository.belmont.edu/lawreview/vol6/iss2/1 This Article is brought to you for free and open access by the College of Law at Belmont Digital Repository. It has been accepted for inclusion in Belmont Law Review by an authorized editor of Belmont Digital Repository. For more information, please contact [email protected]. Title VII Discrimination Protections & LGBT Employees: The eedN for Consistency, Certainty & Equality Post-Obergefell Cover Page Footnote Regina Lambert Hillman is an Assistant Professor of Law at the University of Memphis Cecil C. Humphreys School of Law. In 2013, Professor Hillman was an organizing member of the Tennessee Marriage Equality Legal Team that challenged Tennessee’s constitutional and statutory bans on recognition of valid out-of-state same-sex marriages. In 2015, the case, Tanco v. Haslam/Obergefell v. Hodges, was successfully decided by the United States Supreme Court, culminating with nationwide marriage equality on June 26, 2015. Professor Hillman received her J.D. summa cum laude from The nivU ersity of Tennessee College of Law and her B.A. summa cum laude from The nivU ersity of Memphis. Professor Hillman is appreciative to her research assistant, Jeanne Prendergast de Santos, and the Belmont Law Review staff for assistance with this article. This article is dedicated to Professor Hillman’s wife, Natalie Hillman. This article is available in Belmont Law Review: https://repository.belmont.edu/lawreview/vol6/iss2/1 TITLE VII DISCRIMINATION PROTECTIONS & LGBT EMPLOYEES: THE NEED FOR CONSISTENCY, CERTAINTY & EQUALITY POST-OBERGEFELL REGINA LAMBERT HILLMAN* “We are confronted prImarIly wIth a moral Issue. It Is as old as the scrIptures and It Is as clear as the AmerIcan ConstItutIon. The heart of the questIon Is whether all AmerIcans are afforded equal rIghts and equal opportunItIes, whether we are goIng to treat our fellow AmerIcans as we want to be treated . .” PresIdent John F. Kennedy1 I. TITLE VII, CONFUSION & CONTRADICTION .................................... 2 II. TITLE VII & THE SUPREME COURT ................................................. 8 III. THE EEOC’S IMPORTANT ROLE IN ADVANCING LGBT EMPLOYEE RIGHTS ........................................................................................... 10 A. The EEOC’s Current Strategic Enforcement Plan (“SEP”) .... 11 B. The EEOC DetermInes Title VII ApplIes to Transgender Employees ............................................................................... 12 C. The EEOC BrIngs Its FIrst SuIts ChallengIng DiscrImInatIon Based on Transgender Status/Gender IdentIty Under Title VII .......................................................................................... 15 D. The EEOC Extends Title VII ProtectIons to Sexual OrIentatIon .......................................................................................... 17 * RegIna Lambert Hillman Is an AssIstant Professor of Law at the UnIversIty of MemphIs CecIl C. Humphreys School of Law. In 2013, Professor HIllman was an organIzIng member of the Tennessee MarrIage EqualIty Legal Team that challenged Tennessee’s constItutIonal and statutory bans on recognItIon of valId out-of-state same-sex marrIages. In 2015, the case, Tanco v. Haslam/Obergefell v. Hodges, was successfully decIded by the UnIted States Supreme Court, culmInatIng wIth natIonwIde marrIage equalIty on June 26, 2015. Professor Hillman receIved her J.D. summa cum laude from The UnIversIty of Tennessee College of Law and her B.A. summa cum laude from The UnIversIty of MemphIs. Professor HIllman Is appreciatIve to her research assIstant, Jeanne Prendergast de Santos, and the Belmont Law RevIew staff for assIstance wIth thIs artIcle. ThIs artIcle Is dedIcated to Professor HIllman’s wife, NatalIe Hillman. 1. Radio and Television Report to the American People on Civil Rights (John F. Kennedy, The WhIte House June 11, 1963) (on fIle with John F. Kennedy Presidential Library and Museum). 1 2 BELMONT LAW REVIEW [Vol. 6:2: 1 IV. LOVE WINS: OBERGEFELL & MARRIAGE EQUALITY .................... 19 V. PRESIDENTIAL ADMINISTRATIONS, EXECUTIVE ORDERS & LGBT PROTECTIONS ................................................................................. 20 VI. FEDERAL AGENCIES AT ODDS: EEOC VERSUS DOJ .................... 23 VII. A BIZARRE & IRRECONCILABLE POST-PRICE WATERHOUSE/ONCALE OUTCOME: ONLY TRANSGENDER INDIVIDUALS & STEREOTYPICAL GAY MEN & LESBIANS ARE ENTITLED TO TITLE VII DISCRIMINATION PROTECTIONS—GENDER IDENTITY VERSUS SEXUAL ORIENTATION .................................................................. 25 VIII. THE CIRCUIT SPLIT POST-OBERGEFELL: DOES TITLE VII PROHIBIT EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION? THE CURRENT STATE OF THE CIRCUITS AND THE TREND TOWARD FULL LGBT PROTECTIONS UNDER TITLE VII ............................... 28 A. Post-Obergefell Appellate DecIsIons DenyIng Title VII ProtectIon Extends to Sexual OrIentatIon: The Eleventh CIrcuit .......................................................................................... 29 B. The FIrst CircuIt: Sex “Plus” Sexual OrIentatIon ClaIm ConstItutes DIscrImInatIon Under TItle VII ............................ 31 C. The Growing Trend: Title VII ProhIbIts DiscrImInatIon Based on Sexual OrIentatIon .............................................................. 32 1. The Seventh CircuIt’s En Banc RevIew ........................... 32 2. The Second CircuIt’s En Banc RevIew ............................ 34 IX. THE NEXT STOP: SUPREME COURT REVIEW ................................ 35 X. THE NEED FOR CONSISTENCY, CERTAINTY & EQUALITY POST- OBERGEFELL .................................................................................. 38 I. TITLE VII, CONFUSION & CONTRADICTION Employment protectIons from dIscrImInatory practIces for LGBT2 AmerIcans are fraught with uncertaIntIes and InconsIstencIes. WhIle the LGBT communIty has experIenced hIstorIcal cIvIl rIghts advances In the recent past, those advances have raised new legal dilemmas and led to confusIon and unpredictabilIty, partIcularly in the area of employment law. Legal protectIons In the workforce agaInst dIscrImInatory employment practIces have not kept pace wIth advances In constItutIonal rIghts now available for LGBT employees.3 Due to the fact that regulatIon of employment discrimination varies by jurisdiction, whether legal protections are available to LGBT employees based on sexual orIentatIon and/or gender identity depends on factors such as whether the employment is public or 2. “LGBT” is an acronym for Lesbian, Gay, Bisexual, and Transgender. Although “LGBTQ” is often used to fully recognize the diversity of the LGBT community, this article utIlIzes LGBT to comport wIth the majorIty of legal cases, artIcles, and agencies. 3. Sexual Orientation Discrimination, WORKPLACE FAIRNESS, https://www.workplac efairness.org/sexual-orIentatIon-discrImInatIon (last visIted Nov. 18, 2018). 2019] TITLE VII DISCRIMINATION PROTECTIONS & LGBT EMPLOYEES 3 prIvate, state or federal, and the geographic location where the action takes place. Almost four years after the Supreme Court announced a constItutIonal right to marry for same-sex couples, laws remain that permit an employer to fire a gay or lesbian employee for exercising that very right, and there remains no federal law in place prohibiting employment discrimination on the basis of gender identity or sexual orientation.4 With an estImated 6.5 mIllIon LGBT employees In the UnIted States workforce, employment dIscrImInatIon and the state of avaIlable workplace protectIons present a sIgnifIcant and serIous concern.5 DespIte numerous historIcal advances, Including Supreme Court recognitIon of the “dignity” that LGBT relationships deserve when recognizing a constitutional right to same-sex marriage,6 hate crImes legislatIon protectIng the LGBT community,7 and changes to mIlItary qualIfIcatIon crIterIa,8 employment law has sImply failed to keep up. Further, while Supreme Court jurIsprudence providing an expansIve view of “sex” has led to protectIons for employees discrImInated against on the basIs of gender IdentIty, the federal appellate courts are splIt, along wIth federal agencies, regarding whether LGBT employees are entItled to protectIons from discrImInatIon In the workplace based on sexual orIentation.9 The lack of coherent, unIformly recognIzed laws has prevented consIstent legal outcomes and applIcatIons for employers and employees alIke and undermIned advancements In LGBT rIghts. 4. See infra SectIon III. WhIle state employment protectIons for LGBT employees are not addressed In this artIcle, according to Out & Equal’s 2017 Workplace EqualIty Factsheet, “In 28 states, you can get fIred just for beIng lesbian, bisexual, or gay” and “in 30 states, you can be fIred for being transgender.” Only “[t]wenty-two states and the District of Columbia prohibit employment discrImInatIon on the basIs of sexual orIentatIon and/or gender IdentIty by statute.”