Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of an employee's sex. As construed by the Supreme Court, this is a broad prohibition on gender-related discrimination. As recently construed by the Equal Employment Opportunity Commission, following the lead of several Circuit Courts of Appeals, this also applies to discrimination on account of gender identity.
However, every court agrees that discrimination against an employee because of their actual or perceived sexual orientation is not prohibited by Title VII. The rationale for this, stated over and over, is that when the Civil Rights bill was amended on the floor of the House of Representatives in 1964 to add "sex" to the list of forbidden grounds of discrimination, no consideration was given to discrimination against gay people. This issue wasn't on Congress's radar, and nobody at the time would have thought that adding "sex" to the list meant enacting a federal ban on employment discrimination against gay people. Of course, Congress was not thinking about gender identity discrimination in 1964, but that hasn't stopped some federal courts or the EEOC from applying the statute to such claims using the sex stereotyping theory.
Beginning with the Supreme Court's 1989 decision, Price Waterhouse v. Hopkins, courts have been willing to entertain the claim that an employee has suffered sex discrimination if their adverse treatment was due to their failure to comply with "gender stereotypes" or "sex stereotypes." The cases decided under this theory led the EEOC to conclude that transgender individuals, who by definition challenge sex and gender stereotypes, are protected from discrimination under Title VII. And, in a few cases, courts have found that gay plaintiffs could prevail on Title VII sex discrimination claims if they could show that they were subjected to harassment or other discrimination because of their failure to comply with such stereotypes.
The 5th Circuit's decision last week in EEOC v. Boh Brothers Construction Co., 2012 Westlaw 3055985 (July 27, 2012), evades the issue, but might have been easier to decide were the Employment Non-Discrimination Act (ENDA), banning discrimination on account of sexual orientation or gender identity, to become part of U.S. law.
In this case, a federal jury in Louisiana awarded "a substantial verdict of actual and punitive damages" against the employer in case involving relentless homophobic epithets targeted on a straight male employee by a male supervisor and male co-workers, but the 5th Circuit decided that this was not a valid sex discrimination claim, reversed the verdict and ordered dismissal of the case. (Actually, the jury awarded $200,000 in compensatory damages and $250,000 in punitive damages, but the district court reduced the total damage award to $300,000 in compliance with a statutory damages cap.) As is routine in such cases, the circuit court quotes Justice Scalia's comment in Oncale v. Sundowner Offshore Services that Title VII is not "a general civility code for the American workplace," and while mouthing sympathy for the plaintiff, finds no legal remedy.
Circuit Judge E. Grady Jolly's introductory summary of the facts says about what you need to know to appreciate the case: "The [EEOC] brought this Title VII case against Boh Brothers Construction Company on behalf of the alleged discriminatee, Kerry Woods, a male construction worker in an all-male crew, who claimed that Boh Brothers' crew superintendent, Charles "Chuck" Wolfe, engaged in 'same-sex' harassment against him by referring to him in raw homophobic epithets and lewd gestures. There is no claim or evidence that either Woods or Wolfe is homosexual or effeminate. There is plenty of evidence that Wolfe is a world-class trash talker and the master of vulgarity in an environment where these characteristics abound. And there is Wolfe's accusation that Woods was girlish because Woods used 'Wet Ones' when he went to the toilet. But that seems to be about all of the non-manly characteristics of which Woods was accused. There is no question, however,that Woods was the primary and constant victim of Wolfe's offensive abuse and harassment, much of it in the nature of sexual vulgarity." Elsewhere in the opinion, the court notes the generally homophobic atmosphere at Boh Brothers: "The record further shows that, although Woods may have been Wolfe's primary target, he was by no means his only target. Nor was Wolfe the sole offender. To the contrary, misogynistic and homophobic epithets were bandied about routinely among crew members, and the recipients, Woods not excepted, reciprocated with like vulgarity."
Woods complained to management and was ultimately laid off, the company having claimed to have "investigated" and determined that he was not being sexually harassed. In order for the jury to award damages against the company, it had to find that the company knew about the alleged harassment and failed to take effective action. (The jury rejected a retaliation claim as part of this case, evidently finding credible the company's explanation that the lay-off was not motivated by Woods' complaints.)
In other words, this is a "tough-guy" construction company workplace, there's lots of sexual name-calling, and the court's attitude is, essentially, "get over it." As the court analyzed the case, Woods' allegations did not meet the level of gender non-conformity that would be necessary under the decisions in other Circuits that had upheld causes of action for homophobic harassment provoked by an employee's gender non-conforming behavior. Woods was just subjected to the same flood of abuse that Wolfe aimed at other workers, in this case focusing on one fact to deride Wood in homophobic terms. But because Wood, a straight married man, is not effeminate, and because there is no evidence that Wolfe is gay and thus motivated to harass Woods from sexual desire (one of the "approved" causes of action for a same-sex harassment claim under the Oncale decision), the court holds that this isn't even a Title VII case.
The 5th Circuit hasn't taken a position yet on whether "sex stereotyping" is "a cognizable form of same-sex harassment under Title VII." Concludes Judge Jolly, "As the facts allow for resolution on narrower grounds, we leave that question for another day. The evidence was insufficient to support the jury's verdict of sexual harassment, and the district court erred by denying Boh Brothers' renewed motion for judgment as a matter of law." If federal law prohibited employment discrimination due to an employees actual or perceived sexual orientation, however, this inquiry about "sex stereotyping" would be unnecessary. The use of homophobic epithets as a method of intimidating or irritating subordinates would clearly be illegal, one would think, under such a regime. As this case shows, this would protect non-gay as well as gay employees.