Title VII and ENDA Game Plan

Recently, the federal district court for the District of Columbia issued an important decision in a case about whether Title VII protects lesbian, gay and bisexual workers from discrimination. In an amicus brief, Lambda Legal argued that Title VII covers Peter TerVeer’s claims that he was driven out of his job at the Library of Congress when his boss found out that TerVeer is gay. In its decision, the Court agreed with our position. This could be an important breakthrough in the effort to ensure workplace fairness for the whole LGBT community.

In our amicus brief, we argued, relying on the U.S. Supreme Court ruling in Price Waterhouse v. Hopkins, that it constitutes sex discrimination when one is fired for not conforming to a supervisor’s stereotypes of how a man or woman should be. We argued further that many cases have held it to be violation of Title VII when a supervisor fires an employee because the employee’s actions or beliefs conflict with the supervisor’s religious principles. Judge Colleen Kollar-Kotelly agreed, ruling that TerVeer had adequately pleaded that his supervisor’s actions constituted sex discrimination as they were motivated by TerVeer’s “nonconformity with male sex stereotypes.” Further, Judge Kollar-Kotelly rejected the defendant’s argument that Title VII cannot be invoked if the employee’s sexual orientation is the root of his nonconformity with gender stereotypes or with his boss’s religious norms, ruling in effect that“there is no gay exception to Title VII’s coverage.” Judge Kollar-Kotelly’s ruling will allow TerVeerto proceed with his claims of discrimination based on sex and religion.

Why is this ruling important, and where do we go from here? This court is in the D.C. Circuit, which has no contrary authority or even language suggesting Title VII excludes claims if the employee’s sexual orientation is involved. Thus, the decision reflects a judge’s actual reasoning as opposed to what we see too often in these cases: mere parroting of dicta from other courts that does not address the theories relied on by the EEOC in recent decisions and advanced by Lambda Legal here. Also, the D.C. Circuit has a most impressive track record at correctly assessing the scope of Title VII’s sex discrimination provision, being the first circuit to recognize that men sexually harassing women can violate Title VII, and also being the first to note that men harassing men would too.

It’s a short stroll from Judge Kollar-Kotelly’s courtroom to the Supreme Court building about a half-mile away, but the Title VII legal journey likely will involve a few more twists in the road. Mr. TerVeer’s case is just beginning and could take an off-ramp towards settlement or a decision not to appeal. And even should his case garner a writ of certiorari, it would be great to have other circuits re-examine, or in many cases truly examine for the first time, the actual language of Title VII and the arguments we have been advancing about its coverage. How might this play out?

1. First, workers and lawyers should know that the EEOC will accept and investigate sex discrimination claims of LGBT (and straight) workers where sexual orientation motivated the employer’s actions. It is crucial to file a charge with the EEOC within 180 days of the discrimination to be sure to preserve the claim; the EEOC will then investigate the claim, which will allow employees andtheir attorneys to assess the strengths of the employer’s defenses to the allegations.
2. Also, we believe that the EEOC will employ the same practice to religious discrimination claims similar to TerVeer’s and claims by employees who are retaliated against by their employer for their actions opposing sexual orientation discrimination. Some courts, most notably the Seventh Circuit, have ruled against employees alleging retaliation for opposing sexual orientation discrimination, because they deemed the employee’s belief that Title VII was being violated not to be objectively reasonable. With the TerVeer decision and those from the EEOC casting new light on this question, we expect courts not to dismiss as unreasonable an employee’s understanding of Title VII faithful to its language and Supreme Court precedent.
3. Lastly, we have to keep fighting for the Employment Non-Discrimination Act (ENDA). We have two different options to obtain a goal, and we should not unilaterally toss one aside. And victories on the Title VII front will help, not hinder ENDA efforts. An increased understanding that sexual orientation discrimination is contrary to Title VII principles that we’ve shared for a half-century is a good thing. But let me be clear: As much as Lambda Legal would enjoy bringing each of the federal circuits around, one by one, to the correct interpretation of Title VII, we would happily forego that satisfaction in favor of Congress’s finally realizing that employees and employers would be better off with the immediate, straightforward prohibition of all discrimination against the LGBT community that ENDA’s passage would provide.