Employment law relating to lesbian, gay, bisexual, transgender, and questioning and/or queer (LGBTQ) employees continues to evolve. In the February 2018 issue of Principal Leadership, we wrote about a 7th Circuit Court decision (Illinois, Indiana, and Wisconsin), which ruled that discrimination based on sexual orientation is sex discrimination under Title VII of the Civil Rights Act of 1964. Title VII is a federal law prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
This case was particularly significant because it was the first time a federal circuit court interpreted Title VII as covering discrimination based on sexual orientation. In the case Hively v. Ivy Tech Community College of Indiana, an adjunct faculty member sued under Title VII alleging that, because of her sexual orientation, school officials neither renewed her contract nor hired her when she applied multiple times for full-time positions.
The court’s majority wrote that if the plaintiff had been dating a man, she would not have undergone the type of discrimination she experienced. Accordingly, the court explained she encountered discrimination only because she is a woman dating another woman, thereby constituting sex discrimination. We also noted that the 11th Circuit Court (Alabama, Florida, and Georgia) ruled in 2017 that Title VII does not protect gay and lesbian workers. In the interim, two new circuit court opinions, with implications for school boards, are equally noteworthy.
These two recent cases have received attention from educational associations. For example, the National Education Association (NEA) wrote in an amicus curiae or “friend of the court” brief—meaning that it has an interest in the outcome—that it “recognizes the full dignity and humanity of all students and educators, and stands against discrimination based on race, gender, sexual orientation, gender identity, disability, ethnicity, immigration status, occupation, and religion.”
The NEA also observed that throughout history, sex discrimination against teachers has been motivated by a desire to perpetuate some gender norms, such as women not being allowed to teach, pregnancy-based discrimination, and more recently, hostility toward LGBTQ teachers. We summarize the two recent decisions and their potential impact on school policy.
2nd Circuit Court Decision
In March 2018, the full 2nd Circuit Court (Connecticut, New York, and Vermont) ruled in a 10–3 decision that discrimination on the basis of sexual orientation violates Title VII. In Zarda v. Altitude Express Inc., company officials fired the plaintiff, who was a skydiving instructor, upon learning he was gay. The court found that under Title VII, sexual orientation discrimination is an actionable subset of sex discrimination. The court observed that firing a man because he is attracted to men “is a decision motivated, at least in part, by sex,” and the fired male employee would not have been fired “but for” his sexual preference. The court conceded that when Title VII was enacted in 1964, it was unlikely to have included discrimination based on sexual orientation. The court reasoned that sexual orientation is protected through “the lens of associational discrimination” and held that “because Congress could not anticipate the full spectrum of employment discrimination that would be directed at protected categories, it falls to courts to give effect to the broad language that Congress used.”
6th Circuit Court Decision
Also, in March 2018, the 6th Circuit Court (Kentucky, Michigan, Ohio, and Tennessee) held that an employer unlawfully discriminated on the basis of sex under Title VII when it fired an employee after she informed the company that she would be presenting herself in a manner consistent with her gender identity when working as an undertaker. The court noted that transgender discrimination amounts to gender stereotyping, which the Supreme Court has ruled violates Title VII and is sex discrimination.
The case of EEOC v. R.G. & G.R. Harris Funeral Homes is also interesting because it not only discussed sex discrimination under Title VII, but also the impact of laws protecting employees’ free exercise rights in the workplace. The court rejected the employer’s defense that the state’s Religious Freedom Restoration Act (RFRA) allows for religious liberties to discriminate on the basis of sex. The court observed, RFRA mandates that a “substantial burden” on “religious exercise” must be “in furtherance of a compelling government interest” and “the least restrictive means of furthering” that interest.
The employer claimed two substantial burdens to religious exercise in this case: 1) the presence of a transgender employee would cause distractions in the operation of the business because family members of the deceased would not approve, and 2) that it would force the supervisor to leave the company because he asserted that his religious beliefs do not permit him to work with a transgender person. The court rejected both of these claims, finding that neither posed a substantial burden on the employer. Regarding the first argument, the court reasoned that employers cannot refuse to comply with Title VII because of customers’ “presumed biases.” Next, the court decided that allowing the transgender employee to keep her job would not have substantially burdened the business because understanding her gender identity is not supporting it. In fact, the employee never asked the employer to change his religious beliefs. The court concluded that allowing the plaintiff to work there did not substantially burden his religious practice.
Impact on School Districts
School boards in the 2nd and 7th Circuits are now on notice that Title VII prohibits discrimination based on sexual orientation, while school districts in the 6th Circuit are now aware that Title VII prohibits discrimination based on gender identity. Additionally, the 6th Circuit Court addressed the RFRA’s impact on the Equal Employment Opportunities Commission’s Title VII enforcement power, suggesting that RFRA may have limited application under some circumstances, especially when dealing with the beliefs of individual employees rather than religious employers or institutions. The interplay between one’s sexual orientation and religious freedom are playing out with no clear answer yet in this hot-button issue.
School leaders outside the 2nd, 6th, and 7th Circuits should examine their state laws and their own board policies insofar as a variety of states have enacted antidiscrimination statutes protecting employees from discrimination based on sexual orientation, gender identity, and gender expression. Even in states without such laws, boards might consider it good practice to reconsider their policies in light of these cases. As with many other areas, though, this is a topic that bears close watching. It remains to be seen whether Congress and the Supreme Court, which may yet intervene due to the split between the Circuits, will continue to examine Title VII, the most important federal antidiscrimination employment statute. Stay tuned.
Suzanne E. Eckes, JD, PhD, is a professor at Indiana University in Bloomington and president of the Education Law Association. Charles J. Russo, JD, EdD, is the Panzer Chair in Education and an adjunct professor of law at the University of Dayton in Ohio.
Brief of the National Education Association as Amicus Curiae, No. 15-3775, Zarda v. Altitude Express (2017).
EEOC v. R.G., 884 F.3d 560 (6th Cir. 2018).
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017).
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017).
Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018).