Expanding coverage of sex discrimination laws

The legal definition of "sex discrimination" in the workplace has been rapidly expanding. "Sex discrimination" used to mean denying a woman equal opportunities in the workplace or demanding sex from a subordinate. "Sex discrimination" then came to include hostile work environment claims arising from boorish behavior in the workplace, such as hanging pornographic pictures or making lewd sexual comments.

There are now several cases that hold that sex discrimination claims may arise when an employee does not "act" the way the employee's gender is supposed to act, or if an employee is gay, or if an employee has been diagnosed with Gender Identity Disorder ("GID"), a condition recognized by the American Psychiatric Association, and is commonly referred to as transsexualism. Employers need to be mindful of the wide interpretation courts are giving to Title VII sex discrimination claims.

This trend to expand the definition of sex discrimination perhaps began in 1989 when the United States Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228. In Price Waterhouse, Ann Hopkins claimed that she was passed over for partnership in the accounting firm because of her sex. She claimed that the partners believed that she acted too aggressive because she was "overcompensating for being a woman." One partner advised her to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." She sued claiming that sexual stereotyping had played a role in the firm's decision to not admit her to the partnership.

The Supreme Court agreed with Hopkins. According to the Supreme Court, "gender must be irrelevant to employment decisions." The Supreme Court found that the other partners' comments were made not only because Hopkins was a woman, but also because she did not conform to the stereotype of how a woman supposedly should behave in an office. According to the Supreme Court, Price Waterhouse discriminated against her because she failed to act like a woman.

In 2004, the Sixth Circuit applied the holding of Price Waterhouse to transsexualism and found that Title VII protects employees who have been diagnosed with GID. In Smith v. City of Salem, Ohio, 378 F.3d 566, Jimmie Smith claimed that the City of Salem violated Title VII when it fired him from the Salem Fire Department after he began "expressing a more feminine appearance on a full-time basis." Smith had been diagnosed with GID and he informed his immediate supervisor that his treatment could include the eventual physical transformation from male to female. According to Smith's complaint, the City then conspired to terminate his employment by requiring him to take a series of psychological tests, hoping that he would resign or refuse to take the tests, which would be grounds for termination.

The Trial Court dismissed Smith's case, claiming that his complaint did not state a claim under Title VII. The Sixth Circuit reversed, finding that his complaint stated a Title VII claim by alleging that his failure to conform to sex stereotypes regarding how a man should look and act was the driving force behind his termination. According to the Sixth Circuit, his complaint adequately pleaded claims of sex stereotyping and gender discrimination. The Sixth Circuit in Smith held that Price Waterhouse established that Title VII's reference to "sex" includes both the biological differences between the genders AND gender discrimination - discrimination based on a failure to conform to stereotypical gender norms. On remand, the case was dismissed by agreement of the parties shortly after a settlement conference.

Employers need to be aware of the expanding coverage courts are finding for Title VII cases, especially in the area of sex discrimination. The reasoning in Smith could easily apply to claims of sex discrimination based upon orientation. Many people have strong opinions regarding sexuality. But many people also have strong opinions regarding religion. A smart employer does not allow differences in religion to have any affect upon the work place. If an employer or employee is uncomfortable about a co-worker's religion, that discomfort must not play a role in any employment decisions. And an employer must enforce policies against creating a hostile work environment. Similarly, an employer should not allow discomfort regarding a co-worker's sexuality - whether it's orientation or identity - to play any role in employment decisions and should enforce anti-harassment policies so as to reduce the risk of creating a hostile work environment.