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Legal Update

    Human Resources Group of West Michigan

    Legal Update – May 2019

    by

    Nathan D. Plantinga and
    Sandra M. Andre

    Miller Johnson

    The High Court Finally Takes the Case:  The ‘Sex’ual Evolution of Title VII

    In April, the Supreme Court justices announced that they have accepted three cases that will test the scope of sex discrimination protection under Title VII.  All the cases share the common question:  whether Title VII of the Civil Rights Act of 1964, which forbids discrimination because of sex, is broad enough to encompass discrimination based on gender identify or sexual orientation.  The specific cases involve a transgender funeral home director who won her case after she was terminated; a gay skydiving instructor who successfully challenged his firing; and a social worker who was unable to convince a court that he was unlawfully discriminated against because of his sexual orientation.  The Court will hear oral argument on the cases in its October 2019 term.

    Evolution of the Meaning of “Sex” Under Title VII

    This is not the first time the Court has been willing to consider the scope of the famous language, “because of sex.”  When the Civil Rights Act was passed in 1964, the “principal evils” the statute was designed to protect against were those such as women being denied admission to places of elite higher education and unmarried women being denied bank accounts.

    But, by the 1980’s, the Court first recognized that hostile environment sexual harassment was a cognizable claim under Title VII in Meritor Savings Bank, FSB v. Vinson and further defined when a workplace was sufficiently hostile for purposes of maintaining a claim under Title VII in Harris v. Forklift Systems, Inc.  In Harris, the female petitioner was a manager at an equipment rental company, and alleged that the company’s president created a hostile environment by repeatedly insulting her because of her gender and making her the target of unwanted sexual innuendos.  The Court determined that an employee does not need to suffer injury to assert a hostile environment claim under Title VII, “so long as the environment would reasonably be perceived, or is perceived, as hostile or abusive . . . there is no need for it to also be psychologically injurious.”

    The Court continued to build on its sex discrimination jurisprudence in the late 1980’s, ruling that employment decisions made on the basis of gender stereotypes may constitute unlawful discrimination.  In Price Waterhouse v. Hopkins, the female plaintiff was denied a partnership in the accounting firm where she worked, and was apparently rejected because of concerns about her interpersonal skills.  Some of these concerns, however, appeared to reflect gender stereotypes (for example, one male partner referred to the plaintiff as “macho,” and another informed her that she could improve her chances of making partner if she learned to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”).  Reasoning that sex stereotyping is a form of discrimination on the basis of sex, the Court found that employment decisions that result in sex stereotypes may violate Title VII.

    And, in the late 1990’s, the Court took its sexual harassment jurisprudence one step further, interpreting “because of sex” to include harassment involving a plaintiff and defendant of the same sex.  In Oncale v. Sundowner Offshore Services, Inc., the petitioner alleged that he was physically assaulted in a sexual manner and was threatened with rape by three male co-workers. Two of the co-workers had supervisory authority over the petitioner.  Recognizing that Congress was “assuredly” not concerned with male-on-male sexual harassment when it enacted Title VII, the Court unanimously found no justification in the statutory language or the Court’s precedents for excluding same-sex harassment claims from coverage under Title VII, and offered this famous text:  “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

    What does this mean for my workplace?

    These cases will undoubtedly address one of the nation’s most consequential and unsettled civil rights issues to date.  But until the Supreme Court rules, as we have written in prior updates, it is presently unlawful for any Michigan employer to discriminate on the basis of transgender or transitioning status, and it is decidedly unsafe for any Michigan employer to discriminate on the basis of sexual orientation.

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