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The Definition of “Sex” in Employment Law Cases

February 17, 2020
Warren Buliox

Federal circuits are at odds over who exactly is included in Title VII’s ban against discrimination on the basis of “sex” and the Supreme Court is set to settle the score. Title VII, as you know, makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” 42 USC § 2000e-2(a). But what does the word “sex” really mean? Is it simply someone’s gender, or does it involve much more – like sexual orientation and gender identity?

The Supreme Court provided some guidance in the now decades-old case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where a female employee alleged that she was denied a promotion because she was considered by her superiors to be “macho” and not in conformity with traditional stereotypes for women. The Court there held that discrimination based on sex stereotypes about how a man or woman should behave violated Title VII’s proscription against sex discrimination. Accordingly, argument can and has been made that one’s sexual orientation and gender identity are so interconnected with gender conformity issues that to discriminate on the basis of sex orientation or gender identity is to discriminate on the basis of sex stereotypes, which (as Price Waterhouse instructs) is a violation of Title VII.

But, Price Waterhouse does not specifically touch on gender identity or sexual orientation, and federal courts are split on the issue. For instance, the Seventh Circuit (which includes Wisconsin, Illinois and Indiana) has held that “sex” discrimination can include sexual orientation discrimination and the Eleventh Circuit (which includes Alabama, Florida and Georgia) has held that it does not. See Hively v. Ivy Tech Comm. College of Indiana, 853 F.3d 339 (7th Cir. 2017); and compare against Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017). The issue then is ripe for the Supreme Court, which has decided to hear argument and decide the matter once and for all in light of three cases brought before it — Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC; and Bostock v. Clayton Cnty., Ga.

R.G. & G.R. Harris Funeral Homes involved a transgender woman. See EEOC v. R.G., 884 F.3d 560 (6th Cir. 2018). There, the EEOC pursued claims on an employee’s behalf alleging that the employee was unlawfully terminated because she failed to conform to sex stereotypes. The district court held that the EEOC could not pursue a claim on the employee’s transgender status because it was not a protected class under Title VII but that it could pursue a claim that the employer terminated its employee because she failed to conform with sex or gender-based preferences, expectations or stereotypes. The employer argued that an employer cannot engage in impermissible sex stereotyping when it requires employees to abide by sex-specific dress codes. On this issue, the case centered on a requirement that the employee follow a dress code put into place for male employees. The Sixth Circuit (which includes Kentucky, Michigan, Ohio and Tennessee) held that predicating a decision on whether an individual dresses like a “man” or “women” falls squarely within the type of discrimination Price Waterhouse forbids, and that the funeral home discriminated against the employee on the basis of her sex.

In Altitude Express, a former employee alleged that his employer terminated his employment after he revealed his sexual orientation to a client. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018). The Second Circuit (which includes Connecticut, New York and Vermont) held that sex orientation discrimination is a subset of sex discrimination and, in analyzing the issue, noted in part as follows:

Looking first to the text of Title VII, the most natural reading of the statute’s prohibition on discrimination “because of . . . sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. This statutory reading is reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions. In addition, looking at the question from the perspective of associational discrimination, sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex.

In direct conflict with this, the Eleventh Circuit, in Bostock, affirmed a motion to dismiss for failure to state a claim. Bostock v. Clayton Cty. Bd. of Comm’rs., 723 Fed. Appx. 964 (11th Cir. 2018). That claim was based on sexual orientation, which the Eleventh Circuit held was not a viable claim under Title VII, specifically noting:

Title VII prohibits employers from discriminating against employees on the basis of their sex. 42 U.S.C. §2000e-2(a). This circuit has previously held that “[d]ischarge for homosexuality is not prohibited by Title VII.” Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)1 (per curiam) (emphasis added). And we recently confirmed that Blum remains binding precedent in this circuit. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017), cert. denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). In Evans, we specifically rejected the argument that Supreme Court precedent in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), [*965] and Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), supported a cause of action for sexual orientation discrimination under Title VII.

While the Supreme Court will certainly resolve these conflicts when it decides Bostock, Altitude Express and R.G. & G.R. Harris Funeral Homes, employers are best served by ensuring that all of their employees, regardless of sexual orientation and gender identity, are treated equally and fairly. Not only can it become the law of the land in federal courts across the country, several federal circuits already protect individuals based on sexual orientation and gender identity and several states and municipalities have laws in place that specifically delineate gender identity as a protected characteristic.



This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

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Warren B, Buliox
Partner, Milwaukee

735 N. Water Street, Suite 610, Milwaukee, WI 53202
P: (414) 436-0353 / F: (414) 436-0354
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