Inquiring minds want to know: Is it illegal under Title VII of the Civil Rights Act for federal government employers to discriminate based on sexual orientation or gender identity?
It depends on whom you ask.
Know Where Things Stand
Title VII of the Civil Rights Act of 1964 prohibits covered employers, including the federal government, from discriminating based on various traits, including sex. The law doesn’t expressly list sexual orientation or gender identity as one of those traits.
President Bill Clinton and President Barack Obama both issued executive orders to protect the rights of LGBT workers in the federal workplace.
In 1998, Clinton issued Executive Order 13087, which prohibits sexual orientation discrimination against federal civilian employees.
In 2014, Obama issued Executive Order 13672, which added gender identity as an illegal basis for federal employers to discriminate and made it illegal for federal contractors and sub-contractors to discriminate because of sexual orientation or gender identity.
Although the executive orders restricted federal employers and contractors, they didn’t create a new cause of action for employees. Moreover, President Donald Trump rescinded an order issued by Obama requiring some federal contractors to prove compliance with certain federal and state nondiscrimination laws protecting LGBT employees.
Thus, Title VII is still the primary mechanism used for bringing a claim against a federal employer or contractor for discrimination based on sexual orientation or gender identity. (5 U.S.C. § 2302)
The problem is that different federal courts and agencies have contrasting views on the meaning of sex discrimination under Title VII. The U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that sexual orientation and gender identity discrimination is prohibited sex discrimination. The U.S. Office of the Attorney General issued a memorandum stating otherwise.
Federal appeals courts appear to be equally divided.
The Fifth Circuit recently rejected a transgender employee’s discrimination claim in Wittmer v. Phillips 66 Co. Reaffirming and extending a decision it made in 1979, the court stated that Title VII does not prohibit discrimination based on sexual orientation or gender identity. (Id., citing Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)).
However, in recent years, the Sixth Circuit has held that discrimination based on gender identity is sex discrimination under Title VII.
Both the Second and Seventh Circuits have also recognized sexual orientation discrimination as discrimination “because of … sex.” (883 F.3d 100, 108 (2d Cir. 2018)).
The Second Circuit case, Zarda v. Altitude Express Inc., showcased the federal government’s inconsistent messaging on LGBT rights in the workplace. The EEOC filed an amicus brief in support of the employee, while the Department of Justice filed an amicus brief in support of the employer.
These litigation positions reflect the agencies’ conflicting guidance on the issue.
Consider Your Options
Title VII requires employees to exhaust their administrative remedies. A private-sector employee files a charge with the EEOC. A federal employee files a complaint with his or her agency.
The EEOC accepts and processes sexual orientation/gender identity claims as sex discrimination claims. This gets employees in the door. But what happens next is less certain.
After filing an EEOC charge, filing a lawsuit in district court is the only path forward for a private-sector employee. If an employee files in district court in a jurisdiction where courts don’t recognize sexual orientation/gender identity claims under Title VII—for example, the Fifth Circuit—then the claim could be dead on arrival.
For federal employees, unlike their private-sector counterparts, a lawsuit isn’t the only option. After pursuing a complaint with their agency, federal employees can
- file a lawsuit in district court,
- ask for a final agency decision (FAD), or
- request a hearing before an EEOC administrative judge.
If the employee works in a jurisdiction where federal courts don’t recognize sexual orientation/gender identity claims under Title VII, requesting a FAD or an administrative hearing may be a better way to proceed.
A FAD is a written decision issued by the employer agency. As one would imagine, there is a very strong likelihood that the FAD will conclude that there was no prohibited discrimination. However, employees can appeal the FAD to the EEOC Office of Federal Operations (OFO). The OFO will issue a decision based on the briefs submitted by the employee and the agency.
Federal employees may also request an EEOC administrative hearing. An EEOC administrative judge will be assigned to the case. The process typically includes discovery. If the case survives summary judgment, the employee will have the opportunity to present testimony and other evidence at a hearing. The EEOC administrative judge will issue a written decision and may award monetary and non-monetary damages.
Watch the Legal Landscape
There are currently three petitions for certiorari pending before the U.S. Supreme Court, raising questions as to whether Title VII’s prohibition of sex discrimination applies to discrimination based on sexual orientation or gender identity.
The court is currently considering whether to accept those cases for full review. Until the court or Congress resolves the issue, federal employers and employees should bear in mind the possibility that discrimination based on sexual orientation and/or gender identity may be actionable under Title VII.
But, at least for now, federal employees may continue to seek relief for sexual orientation and gender identity discrimination through the administrative EEOC process.
Sara Nunley McDonough is a shareholder at Alan Lescht & Associates P.C. in Washington, D.C. She represents private and public-sector workers in state and federal court proceedings and before administrative agencies.