“Sex” In Title VII

Gender norms are rapidly breaking down. As millennials join the workforce, they bring changed attitudes with them. Ironically, the law that governs the changes those attitudes mandate originated back in 1964. Title VII is a piece of the landmark Johnson-era legislation intended to eradicate discrimination in the workplace. It is one of several laws enforced and interpreted by the Equal Employment Opportunity Commission (EEOC). In response to growing public support for the LGBTQ community, the EEOC has adopted a broad definition of the word “sex” under Title VII.

The EEOC’s federal cases have emboldened the agency. Indeed, the EEOC is not bashful about its priority enforcement toward LGBTQ sex discrimination complaints. However, federal courts remain hesitant to recognize LGBTQ-based claims, and courts reaching the issue are more willing to find that transgender discrimination is cognizable, as opposed to sexual-orientation-based claims. So far, only the Sixth and Eleventh Circuit Courts of Appeal (sitting on three-judge panels) and an array of district courts have recognized transgender-based Title VII claims.

The author has some advice for employers contemplating a defensible policy concerning LGBTQ workers. They have little leverage on the bathroom issue, he says. LGBTQ employees must be permitted to choose which bathrooms they use. Prepare gender-neutral dress codes. Create an atmosphere conducive to welcoming and respecting diversity and the LGBTQ community. If your workforce understands that harassment or other misconduct is not tolerated, then the risks associated with Title VII sex-based claims diminishes rapidly.