While discrimination on the basis of sexual orientation is still not expressly prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”), the federal anti-discrimination law that prohibits sex discrimination, (although the issue is currently before the courts) discrimination on the basis of gender stereotypes is proscribed. By the U.S. Supreme Court.

Indeed, in a recent case out of the Western District of Kentucky, the federal court denied a bank teller’s claims of sexual orientation discrimination under Title VII, but determined that the teller alleged sufficient facts to proceed with claims alleging gender stereotyping after she was passed over for promotions on multiple occasions.

The bank teller alleges that her supervisor informed her that she was “too butch” to work with customers, the complaint says.

“Too butch!”

Anyway, the court dismissed her sexual orientation discrimination claims because Title VII did not prohibit discrimination based on sexual orientation. As we’ve written about, most recently here and here, federal appeals courts are divided about whether Title VII prohibits sexual orientation and gender identity discrimination since those two classes are not explicitly protected classes in the text of the law.

Discrimination on the basis of gender stereotypes, i.e., how a person should look, dress, and act, is illegal. No one says it better than SCOTUS (the U.S. Supreme Court). In the specific context of sex stereotyping, SCOTUS in Price Waterhouse v. Hopkins stated, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.”

The court in this Kentucky case noted that the line between “sexual orientation” and “sex stereotyping” is “a very fine” one. However, in Price Waterhouse, SCOTUS condemned sex stereotyping as a form of sex discrimination finding that allegations of gender identity and transgender discrimination based on non-conformance with gender norms and outdated stereotypes necessarily involve sex discrimination. So, allegations of stereotyping on the basis of sex will usually be sufficient to survive a motion to dismiss.

Employer Takeaways

  • Have a Code of Conduct and/or Employee Handbook condemning unlawful discrimination and harassment, and follow the policy. Take swift and decisive corrective action to prevent such conduct.
  • Train your employees, supervisors, and managers so that they are not discriminating against one gender on the basis of sex— this includes the unequal treatment of women based on their gender. Training should be interactive and geared toward your specific workplace. A “one size fits all” approach to training is generally ineffective.
  • If the impact of favoring or crediting your male employees over your female employees causes your female employees to achieve less compensation or promotion, you may very well have a problem—a charge of sex and pay discrimination that is likely to survive a motion to dismiss, as this Kentucky case did.
  • Finally, anticipating that sexual orientation will ultimately be included within Title VII, do what many other employers have done and are doing: add this category to your handbooks.