BY ARTHUR S. LEONARD | When legislatures refuse to act on proposals to protect LGBT people from discrimination, can civil rights agencies and executive officials just go ahead and extend the protections on their own?
Some recent events put this question sharply into play.
In July 2014, President Barack Obama signed an executive order requiring private sector federal contractors to adopt policies banning discrimination based on sexual orientation and gender identity. He also extended protection against gender identity discrimination within the federal government’s executive branch. (Clinton administration action had previously extended those protections based on sexual orientation, again within the executive branch.)
Two years before Obama moved on gender identity discrimination in federal employment, the Equal Employment Opportunity Commission (EEOC), which is tasked with enforcing civil rights protections in the workplace, had issued an administrative ruling that the ban on sex discrimination in Title VII of the 1964 Civil Rights Act prohibited discrimination because of gender identity, a conclusion later confirmed by a Justice Department ruling in the same case, Macy v. Holder. There, a transgender woman, Mia Macy, brought suit after the federal Bureau of Alcohol, Tobacco, Firearms and Explosives withdrew a job offer upon hearing that she was in the process of transitioning.
This past summer, the EEOC took a further step, ruling administratively in the case of a gay air traffic controller denied a permanent position by the Federal Aviation Administration under circumstances suggesting that homophobia influenced the decision. The man, David Baldwin, filed an internal discrimination claim within the FAA, asserting a violation of Title VII’s sex discrimination ban. That agency said Title VII didn’t apply, but the EEOC reversed the ruling, holding, in an opinion announced on July 15, that sexual orientation discrimination claims can be raised under Title VII. This left Baldwin with a choice: he could litigate his discrimination claim administratively or he could, with the EEOC’s authorization, take his dispute to federal court. Baldwin’s attorney announced recently that he will pursue his Title VII claim in federal court.
Most recently, on October 22, New York Governor Andrew Cuomo announced that the State Division of Human Rights is publishing a proposed regulation in the state register on November 4 interpreting the Human Rights Law ban on discrimination because of sex or disability as providing protection against discrimination for transgender people. The Division will treat “gender dysphoria” as the kind of diagnosable medical condition that falls within the statutory definition of a disability, and it will take the position that discriminating against somebody because of their gender identity is the same for legal purposes as discriminating because of their sex.
These actions by Obama, Cuomo, the EEOC, and the New York State Division come in the face of the failure by Congress and the New York State Senate to approve pending legislation to adopt these policies. They are arguing, in the face of such legislative inaction, that existing laws already provide a basis for acting against such discrimination.
These executive and administrative actions can have concrete consequences: Companies with substantial federal contracts will have to adopt non-discrimination policies if they want those contracts renewed. Employees who encounter gender identity discrimination will be able to file charges with the EEOC and the State Division of Human Rights, those agencies will investigate the charges, and if they find merit in them, may attempt to negotiate settlements on behalf of the individuals, take their claims to court, or authorize them to file their own lawsuits, as Baldwin is doing against the FAA.
In fact, the EEOC recently reported that it had administratively resolved 846 discrimination claims nationwide on behalf of LGBT plaintiffs during 2014, the last year for which they have complete statistics, just on the basis of these internal policy interpretations.
The important question now is whether the courts — federally and in New York State — will cooperate when an alleged discriminator resists the agencies’ interpretations. After all, both the federal and state constitutions give the power to make new laws to the legislatures, not to elected executives or administrative agencies. The EEOC and the State Division of Human Rights can interpret existing laws, but they can’t manufacture “new” substantive legal rules. Some defendants in these lawsuits can be counted on to raise the objection that the relevant statutes do not forbid this kind of discrimination. Courts will have to determine whether these new interpretations are legitimate, and that will turn heavily both on the judicial philosophies of the particular judges deciding these cases and on the precedents that bind them.
Shortly after the 1964 Act’s Title VII went into effect, the EEOC was faced with the question whether gay or transgender people were protected from discrimination by that statute, and its unequivocal answer was “no,” in line with the response of numerous federal courts in early cases. The EEOC maintained that position through nearly half a century, even after the courts began to evolve on the issue in the wake of a 1989 Supreme Court decision in Price Waterhouse v. Hopkins. There, in a suit from a woman denied a partnership at Price Waterhouse because she was seen as insufficiently “feminine,” the court found that “sex stereotyping” by an employer could be evidence of unlawful intentional sex discrimination.
By early in this century, several federal courts — including courts of appeals — had accepted this sex stereotyping theory on behalf of some gay and transgender discrimination plaintiffs, and a consensus seemed to be emerging among federal courts that gender identity discrimination could violate Title VII’s sex discrimination ban. The EEOC relied on these rulings in 2012 when it issued its opinion in Macy v. Holder.
Over the past few years, a handful of federal trial judges have also used the sex stereotyping theory in discrimination cases brought by gay people, and the EEOC seized upon some these opinions this summer, as it celebrated its 50th anniversary of enforcing Title VII, when it ruled on David Baldwin’s discrimination complaint.
One of the biggest barriers to getting trial judges to accept these new interpretations is the system of precedent followed in the court system. A trial judge is bound by the rulings of the appellate courts. A federal district court is bound by the rulings from the court of appeals in the circuit where it is located.
On September 9, a sexual orientation discrimination plaintiff confronted this problem in a federal lawsuit in Florida. Barbara Burrows sued the College of Central Florida claiming that her sexual orientation was one of the reasons she was fired. She argued that the EEOC’s recent decision supported her claim that Title VII applied to her case. District Judge James Moody, however, observed that although “the EEOC’s decision is relevant and would be considered persuasive authority, it is not controlling.” He evidently believed he was not free to accept her argument, writing, “Until the Supreme Court or Eleventh Circuit recognizes the opinion expressed in the EEOC’s decision as the prevailing legal opinion, the Court declines to reconsider in light of the EEOC’s decision.”
Several other federal court rulings issued since the EEOC’s July 15 Baldwin opinion have not even mentioned it while reaffirming that sexual orientation discrimination claims cannot be asserted under Title VII. For example, in a dispute between Julio Rodriguez and the New York City Health and Hospitals Corporation, US District Judge Brian M. Cogan in Brooklyn, on September 8, wrote, “The Second Circuit has decided the question of whether ‘sex’ under Title VII includes ‘sexual orientation’ as a protected class. It has explained that ‘the law is well-settled in this circuit and in all others to have reached the question that… Title VII does not prohibit harassment or discrimination because of sexual orientation.’ Therefore, plaintiff’s argument that he ‘is clearly a member of a protected class, because he identifies as bisexual,’ is wrong.”
Another federal district judge in Brooklyn, John Gleeson, issued a decision on October 16 in a discrimination case brought by Steven D. Moore against Greyhound Bus Lines. Moore alleged discrimination because of his “sexual preference” and religion. While finding that Moore’s factual allegations did not meet the requirements for a discrimination claim in any event, Gleeson dropped a footnote at the end of his opinion, reminding Moore that “Title VII does not apply to allegations of discrimination on the basis of sexual orientation,” referring to the same Second Circuit opinion from 2000 that Judge Cogan relied on in his ruling on Rodriguez’s case.
Similarly, in a suit brought by Jameka K. Evans against Georgia Regional Hospital in the US Southern District of Georgia Court, decided on September 10, Magistrate Judge G.R. Smith undertook a lengthy discussion of the numerous federal court rulings rejecting sexual orientation claims under Title VII, not once mentioning the EEOC’s Baldwin decision.
To make some headway on this issue a case has to go to a court of appeals. Lambda Legal announced that it has taken that step, urging the Seventh Circuit Court of Appeals in Chicago to reverse a lower court ruling and allow a lesbian, Kimberly Hively, to litigate her discrimination claim against Ivy Tech Community College. Ivy Tech had persuaded the federal district court in the Northern District of Indiana to dismiss Hively’s Title VII case, successfully arguing that Title VII does not apply to sexual orientation claims. In a hearing before a three-judge panel of the court held on September 30, Lambda argued that the EEOC opinion, together with a handful of earlier federal trial court decisions cited by the EEOC, provide persuasive reasons for the Seventh Circuit to set aside its own prior precedents on this issue and embrace the new approach to interpreting “sex” under Title VII.
A three-judge panel of the Seventh Circuit may consider itself bound by prior circuit precedent, but Lambda could then petition for an “en banc” rehearing by the full circuit bench, which could overrule its old precedent.
Or this case could be the vehicle to get the issue before the Supreme Court.