Rex P. Fennessey

Rex P. Fennessey Associate

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What Does “Sex” Mean?

The continuing evolution of gender discrimination under Title VII of Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee “because of . . . sex[.]”  Given that Title VII’s prohibition has been in effect for more than 50 years, you would be forgiven for thinking that the meaning of the term “sex” in that statute is, by now, well settled.  But recent developments would prove you wrong.  The meaning of the phrase “because of…sex” continues to evolve with respect to gay, lesbian and transgender individuals.

Why all the uncertainty?  Some background may help to explain.

When it was originally proposed in 1963, the bill which became the Civil Rights Act of 1964 was focused primarily on racial discrimination.  The term “sex” was added to the bill just two days before bill was voted on by the House of Representatives, and consequently, there is little in the Congressional record discussing the meaning of the term “sex”; though it was generally understood to mean discrimination against women. For decades after its passage, the EEOC – the federal agency charged with enforcing Title VII – and courts interpreted the term “sex” in Title VII to refer to an individual’s biological sex.

The case that threw open the doors to broader interpretation of the meaning of “sex” in Title VII was Price Waterhouse v. Hopkins.  In that case, a female employee was denied partnership at her accounting firm because she exhibited what her employer considered “masculine traits.”  The Supreme Court found this violated Title VII’s prohibition against discrimination “because of sex” because the phrase includes discrimination because of “sex stereotypes.”  Price Waterhouse was the first case where the Supreme Court interpreted the term “sex” to include not only biological sex, but also an individual’s “gender” – which includes socially-constructed roles, behaviors and attributes generally accepted for men and women.

In 2004, the Sixth Circuit became the first federal appellate court to extend the sex-stereotyping theory of Price Waterhouse to transgender individuals.  In that case, the Sixth Circuit found that a fire department who terminated a lieutenant because he expressed a “feminine appearance” had violated Title VII’s prohibition against “sex” discrimination when it terminated the employee because of gender-nonconformity.

Before long, the EEOC had changed its position on the meaning of “sex.”  In 2012, the EEOC ruled for the first time that “sex” discrimination included discrimination based on gender identity, change of sex, and/or transgender status.”  As readers of this blog will recall, shortly thereafter, the EEOC announced its 2013-2016 Strategic Enforcement Plan which indicated it would prosecute claims of discrimination against lesbians, gays, bisexuals and transgender persons.  The EEOC has since filed at least three lawsuits on behalf of transgender employees alleging “sex” discrimination under Title VII.

Last year, the Supreme Court decided in Obergefell v. Hodges that states cannot deny marriage licenses to same-sex couples.  Although that case did not involve “sex” discrimination under Title VII, the ruling has been interpreted by several lower courts to indicate that “sex” under Title VII should include “sexual orientation.”

In March of this year, the EEOC filed its first two lawsuits claiming that sexual orientation discrimination violates Title VII.   Two cases brought by private litigants who also claim that the phrase “because of… sex” includes discrimination because of sexual orientation are currently before the United States Courts of Appeal for the Seventh and Eleventh Circuits.  Most attorneys in the field anticipate that, within the next few years, the U.S. Supreme Court will address the question of whether the phrase “sex” in Title VII includes sexual orientation and gender identity.  To date, however, it is uncertain whether courts will conclude that “sex” includes sexual orientation.

For employers, an expanding definition of “sex” under Title VII will inevitably lead to claims of “sex” discrimination on behalf of gay, lesbian, bi-sexual and transgender employees.  Given the EEOC’s current interpretation and focus on such forms of discrimination, employers are advised to review handbook policies (such as dress codes), workplace policies (such as rules for use of bathrooms) and to take seriously claims of sexual orientation or transgender discrimination.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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