LGBT+ Employment Discrimination: Eight Case Law Analyses

Introduction and Overview

The following case analyses examine eight employment discrimination decisions spanning issues of sexual orientation, gender identity, sex stereotyping, religious accommodation, and disability. Each case is reviewed with respect to the parties involved, the relevant facts, the legal issues presented, applicable law, the court's holding, and the reasoning underlying the decision. Discussion questions follow each brief, and a concluding reflection synthesizes the overarching themes across all eight cases.

Cases Involving Sexual Orientation Discrimination

Parties: The Plaintiff in this case was Wendy Weaver, and the Defendants included the Nebo School District — a public school district in the southern part of Utah County — as well as Robert Wadley, Almon Mosher, Larry Kimball, Denis Poulsen, and multiple "Does."

Facts: The Plaintiff was employed as a teacher with the Nebo School District and also coached the school's girls' volleyball team, for which she received a stipend. The incumbent coach was typically selected for the position each season, but the Plaintiff claimed she was denied renewal of her coaching position solely because of her voluntary admission that she was homosexual.

Issue: The Plaintiff's claims were twofold: (1) correspondence from the school administrator dated July 22 and October 29, particularly the restrictions on her speech, were vague and overbroad and operated to restrain constitutionally protected speech; and (2) the school's decision to remove her as volleyball coach and its failure to rehire her for another season were based solely on her sexual orientation — an impermissible reason violative of the 14th Amendment.

Applicable Law: The applicable law in this case was the First Amendment's protections of free speech and the Equal Protection Clause of the 14th Amendment, which prohibits discrimination based in part on sexual orientation (Covais, 2022).

Holding: The Plaintiff's motion for summary judgment was granted, the Defendants' motion for summary judgment was denied, and the school was ordered to remove the objectionable correspondence from her personnel file.

Reasoning: The court reasoned that community animus toward homosexuals did not override the Plaintiff's First and 14th Amendment protections.

Case Question 1: What would you have done if you had been the school administrator receiving calls in this situation? As indicated in Note 1, "The word 'gay' is used in the vernacular of this age. A similar inquiry put in the nineteenth century would reflect an entirely different status or characteristic." Antiquated views about homosexuality and community animus should not be permitted to serve as a basis for discriminating against the Plaintiff.

Case Question 2: Do you think the school was correct in ignoring the teacher's record? The school did not ignore the Plaintiff's teaching record so much as it assigned a higher priority to satisfying the concerns of students and parents.

Case Question 3: Does it make a difference that this matter did not arise at the teacher's instigation but in response to a question from a student? The Plaintiff's response to the verbal question from a student concerning her sexual orientation was inappropriate and should not have been answered as a matter of school district policy, especially since this response was the proximate cause of the lawsuit. The student's question was analogous to asking a teacher whether she likes to molest children or beat her spouse. The Plaintiff had every opportunity to decline to answer on the grounds of the question's inappropriateness, yet she offered her response almost eagerly.

Conclusion: The Plaintiff's fundamental First Amendment rights to constitutionally protected speech were violated by the school administrator, and the court's decision to grant her summary judgment was consistent with the provisions of the 14th Amendment.

Parties: The Appellant in this case was Mia Macy, a male transitioning to female, and the Appellee was the Bureau of Alcohol, Tobacco, Firearms and Explosives ("the Agency") and its then-acting director, U.S. Attorney General Eric Holder.

Facts: The Appellant alleged that the Agency unlawfully discriminated against her by denying a promised job after learning she was transgender — a position for which she had applied as a man. Pursuant to internal Agency policy, the Appellant's complaint was divided into three claims: (1) discrimination based on sex, (2) gender identity and sex stereotyping, and (3) transgender status. The Agency determined that only the sex-discrimination claim could be referred to the Equal Employment Opportunity Commission ("the Commission"), while the other two would be reviewed internally through a process that did not provide for a hearing. The remedies available through internal review were more limited than those available from the Commission, and the Appellant argued that the Agency had improperly concluded that her other two claims did not constitute sex discrimination.

Issue: The Appellant maintained that the Commission held appropriate jurisdiction over all three of her claims and should therefore investigate all three charges of sex-based discrimination.

Applicable Law: The 14th Amendment prohibits discrimination based on, among other things, sexual orientation, which includes the transitional period and culmination of acquiring a different gender identity.

Holding: The Commission's decision did not attempt to resolve the Appellant's original claims; rather, it held that all three claims were subject to adjudication under Title VII and should be remanded to the Agency for additional processing as a Title VII sex-discrimination claim.

Reasoning: The Commission viewed favorably the Appellant's claim that she was denied a position that had been previously promised to her when she presented as a man.

Case Question 1: Do you understand the agency's analysis of why it held as it did? Negative stereotypes and longstanding biases against Americans who pursue what they regard as their true gender cannot be permitted to rise to the level of permissible sex discrimination in the workplace.

Case Question 2: Do you understand why the prospective employer may have been concerned and made the decision it did? Given the high-stakes nature of the Agency's mission, it is reasonable to posit that it was concerned about the mental stability of the Appellant during this transformative period in her life.

Case Question 3: Given the evolution of the law as set forth by the EEOC, do you agree with the EEOC's conclusion? Yes. An individual who transitions from one gender to another still retains the same Social Security number, background, experience, and so forth.

Conclusion: The Commission decided correctly in consolidating all three of the Appellant's claims as sex-based discrimination subject to adjudication under Title VII.

Parties: The Plaintiff-Appellant in this case was Kimberly Hively, an openly lesbian part-time adjunct professor, and the Defendant-Appellee was Ivy Tech Community College of Indiana.

Facts: Despite repeated applications for full-time employment, the Plaintiff-Appellant was turned down and eventually had her contract cancelled (Corcoran, 2018). She filed suit in the U.S. District Court for the Northern District of Indiana, where it was dismissed for failure to state a specific claim, as sex-discrimination claims were treated differently from sexual-orientation claims at the district level.

Issue: This case presented a "pure question of statutory interpretation" regarding the Plaintiff-Appellant's rejection of heterosexual norms and conformity with traditional female stereotypes.

Applicable Law: Title VII of the Civil Rights Act of 1964.

Holding: The Seventh Circuit Court held that discrimination based on sexual orientation is a form of sex discrimination.

Reasoning: The text of Title VII specifically states that sex need only be a "motivating factor" in order to establish sex discrimination, and sex is a prerequisite for employer sexual-orientation discrimination.

Case Question 1: Do you understand why the college would not hire Kimberly Hively? No. The reasoning passes understanding in an enlightened society.

Case Question 2: Do you understand the court's reasoning for the decision? Yes. The fact that Congress could not anticipate every possible contingency did not prevent the application of Title VII's protections to the Plaintiff-Appellant's circumstances.

Case Question 3: What would you have done had you been the college administrator faced with this decision? The decision whether to hire the Plaintiff-Appellant would have been based strictly on qualifications and merit.

Conclusion: Times change, and so too do the protections afforded by Title VII.

Cases Involving Gender Identity and Sex Stereotyping

Parties: The Plaintiff in this case was Antonio Sanchez and the Defendant was Azteca Restaurant Enterprises, Inc. ("Azteca").

Facts: The Plaintiff filed suit against his former employer, Azteca, alleging gender-based harassment. His male coworkers and a male supervisor subjected him to harassment related to his effeminate appearance, mannerisms, and behaviors — including even the manner in which he carried a food tray. The Plaintiff also alleged he was terminated in retaliation for opposing this workplace harassment.

Issue: Did the conduct of the Plaintiff's male coworkers and male supervisor violate Title VII by creating a hostile work environment?

Applicable Law: Title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination.

Holding: The appellate court held that a reasonable person in the Plaintiff's position would likewise have found the relentless, severe harassment by his male coworkers and supervisor violative of his rights under Title VII.

Reasoning: The district court's original decision to deny the Plaintiff's claims was inexplicable given the severity of the abuse to which he was subjected — a reality acknowledged by the appellate court.

Case Question 1: How would you characterize this case — as sexual-orientation discrimination not protected by Title VII, or as gender-based discrimination protected by Title VII? The Plaintiff's gender-based claims were held to be protected under an expanded interpretation of Title VII, similar to the fact situation in Hively above.

Case Question 2: Why do you think the managers did not address the employee's complaints? Despite the potential financial consequences of a gender-based discrimination claim, Azteca's managers were likely unwilling to threaten their own sense of machismo by even appearing to approve of the Plaintiff's effeminate appearance, mannerisms, and behaviors.

Case Question 3: What would you have done differently had you been Sanchez's manager? In coordination with Azteca's human resources department, the appropriate course of action would have been to thoroughly investigate the Plaintiff's claims and take corrective action, including warning his coworkers and supervisor that further misconduct would be grounds for termination.

Conclusion: This case underscored the importance of applying Title VII protections during a period in history when the concept of gender is undergoing profound change.

Parties: The unnamed Plaintiff in this case was Jane Doe and the Defendant was the Boeing Company.

Facts: Hired by Boeing in 1978 as a software engineer, Jane Doe was a biological male and indicated this status on the employment application. Six years later, Doe sought professional help concerning gender identity and was diagnosed by a physician as suffering from gender dysphoria. Following a series of physician-prescribed hormone and electrolysis treatments, Doe legally changed her name to a feminine version in April 1984. A year later, Doe advised Boeing management and coworkers of her condition and her intention to undergo sex reassignment surgery, as well as her physician's recommendation that she assume the social role of a female for one full year prior to qualifying for the procedure.

Boeing management responded by advising Doe that while she could not use the women's restrooms or dress in feminine attire while still an anatomical male, she would be permitted to do so after the completion of surgery. Pursuant to an unwritten policy also applied to other transgender employees, Doe was allowed to wear the company-prescribed unisex uniform at work but not clothing obviously designed for women. During a four-month period in late 1985, approximately a dozen complaints about Doe were received by Boeing management concerning her use of the women's restrooms and her female attire. Boeing management issued warnings, cautioned Doe that termination would result from egregious violations, and provided a grace period for supervisory observation. Subsequently, Doe's supervisor cited her addition of a string of pink pearls to her unisex uniform — which she refused to remove on two occasions — as a willful violation of Boeing's policy, and she was terminated.

Issue: Two issues were involved: (1) did Doe's condition rise to the level of a legal "handicap," and (2) did the Defendant provide the Plaintiff with reasonable accommodations for her transsexual transition?

Applicable Law: Washington State's Law Against Discrimination, RCW 49.60.

Holding: The Plaintiff sued Boeing for handicap discrimination, and on appeal and cross-appeal, the Defendant was held to have exercised reasonable accommodation for Doe throughout her gender transition.

Reasoning: Boeing management made extensive efforts to accommodate Doe's transition, and the record makes it clear that she ultimately pushed the company beyond its legal limits by willfully disregarding its clothing policy.

Case Question 1: What do you think the real problem was here? The private sector is not responsible for managing the conduct or outcomes of social experiments, and the real problem in this case was Doe's willful violation of rules applicable to all Boeing employees. Americans generally do not object to equal rights, but they resist when some individuals seek to obtain more than their fair share through questionable means. It is worth noting that if the discomfort arose from race-based bias rather than gender identity — that is, if employees simply refused to work alongside colleagues of other races — such attitudes would find no legal protection whatsoever.

Case Question 2: Are you surprised that Boeing had eight other employees dealing with a similar issue? Boeing has long employed more than 100,000 people, and at the time of the Cold War in 1985, its workforce was comparably large. Given that scale, it is not entirely surprising that multiple employees were navigating gender transition; what is notable is the degree to which the company attempted to accommodate each of them during a period when being transgender in the workplace entailed significant social risk.

Case Question 3: Doe evidently continued to use the women's restroom, but it was the pink pearls that led to her termination. Why? Wearing a strand of pink pearls was tantamount to Doe wearing a neon sign reading "Look at me, I'm a woman now" — a direct and blatant challenge to Boeing management's authority and its established accommodation policy.

Conclusion: Justice was served in this case.