Discrimination claims based on sexual orientation are on the rise. Yet determining a school's risk regarding claims of discrimination can be perplexing. The law, like societal norms, is largely in flux. This article provides a summary of, and trends in, federal and state laws regarding sexual orientation. It also provides an overview of practical considerations for independent schools formulating non-discrimination policies. As with any situation in which schools are revamping their policies and training staff on those policies, the support and wellbeing of students should be the primary concern.

Federal Law in the Employment Context

Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employment discrimination based on sex, among other protected classifications. Twenty-five years ago, in Price Waterhouse v. Hopkins, the United States Supreme Court considered the meaning of the term "sex."[i] In that case, a plaintiff sued after she was refused partnership. The firm admitted the plaintiff was qualified to be considered for partnership and likely would have been elevated had she made herself less "macho" by doing things such as wearing make-up, walking and talking more femininely, and by taking a course in charm school. The Supreme Court held that Title VII barred not just discrimination based on the fact that the plaintiff was a woman, but also discrimination based on the fact that she failed "to act like a woman," to conform to socially-construed gender expectations. The Court's landmark decision made it illegal under Title VII to discriminate because of sex-stereotyping.

Sexual orientation itself, however, is not explicitly covered under federal law and the courts have generally been reluctant to extend Title VII protections to discrimination claims based solely on that basis. The Equal Employment Opportunity Commission ("EEOC") – the federal agency that enforces Title VII – has started to expand the definition of "sex" in ways that are relevant to sexual orientation claims. Courts may follow the agency's lead.

In 2012, the EEOC took the position that gender identity falls under the protected classification of "sex." The decision Macy v. Holder involved a transgender woman who was born male. [ii] As a male, Macy applied for a position as a ballistics technician at the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). The ATF told Macy that pending a background check, Macy would be hired. During the background check, Macy disclosed that she was in the process of transitioning from male to female. About five days later, Macy received an email stating that the position was no longer available due to budget cuts. In actuality, the ATF hired someone else for the position. Macy filed a complaint with the EEOC alleging discrimination based on "gender identity" and "sex stereotyping." The EEOC ultimately determined that her complaint appropriately alleged a discrimination claim based on "gender identity" and "sex stereotyping." The EEOC stated that "claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition." The EEOC reiterated its position when it listed "coverage of lesbian, gay, bisexual, and transgender individuals under Title VII" as one of its top six national enforcement priorities in its Strategic Enforcement Plan for 2012-2016. While the EEOC's position is not binding on courts, it may be significant because courts typically defer to the EEOC's interpretation of Title VII.

Employment Non-Discrimination Act ("ENDA")

Congress is currently considering the Employment Non-Discrimination Act of 2013 ("ENDA") which would prohibit workplace discrimination against lesbian, gay, bisexual, and transgender (LGBT) applicants or employees. It would apply to employers with 15 or more employees and would protect individuals from discrimination based on actual or perceived sexual orientation or gender identity. The bill includes an exemption for religious organizations and religiously affiliated entities, including schools, whose primary purpose is religious worship or teaching religious doctrines. ENDA passed the Senate on November 27, 2013, but has not been considered by the House of Representatives.

State and Local Laws

Protections by state vary greatly. Twenty-one states and the District of Columbia passed laws prohibiting employment discrimination based on sexual orientation as of this writing. Seventeen states and the District of Columbia prohibit discrimination based on gender identity.[iii] All of these states provide a religious exemption.[iv]

Approximately 10 states have executive policies in place that protect gay and transgender state employees from discrimination, including Alaska, Arizona, Indiana, Kansas, Kentucky, Michigan, Missouri, Montana, Ohio, and Pennsylvania.[v] Alaska, Arizona, and Montana prohibit discrimination based on sexual orientation for state employees, and Missouri's executive policy prohibits discrimination based on sexual orientation for executive branch employees.[vi] At least 160 cities and counties have passed their own laws prohibiting gender identity discrimination.[vii]

In addition to cities and counties, businesses have been leading the way in offering inclusive non-discrimination protections. Hundreds of companies have enacted policies protecting LGBT employees. As of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation and 282 (57 percent) had policies that include gender identity.[viii]

Federal Law as it Applies to Students

Non-profit schools must adopt and operate in accordance with racial nondiscrimination policies regarding students.[ix] There is no federal requirement that schools adopt a non-discrimination policy for students regarding sexual orientation. As a result, discrimination complaints are usually filed under applicable state or local laws.

State Laws as they Apply to Students

There are generally two distinct types of laws that protect LBGT students in schools. The first type is fully enumerated anti-bullying laws. These are laws that specifically prohibit bullying and harassment of students based on sexual orientation and gender identity. To date, approximately 16 states (Arkansas, California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have enacted such laws.[x]

The second type is non-discrimination laws that many states have passed to provide protection from discrimination to LBGT students. Thirteen states – California, Colorado, Connecticut, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, New York, Oregon, Vermont, Washington,—and the District of Columbia have enacted non-discrimination laws to protect students on the basis of sexual orientation and gender identity. Wisconsin provides protection on the basis of sexual orientation, but not gender identity.[xi]

Legislatures are paying increased attention to bullying of LGBT youth in schools by enacting laws that protect against bullying and discrimination, but not all of these laws will apply to independent schools. Some statutes are limited to public schools. Many include an exception for religious schools. Others only apply to schools that receive public funds. Independent schools will need to work closely with their counsel to determine the laws in their jurisdiction. This is one area where schools may wish to work together or through their state or regional organizations to stay apprised of the quickly developing laws in this area.

Practical Considerations

Many independent schools operate in jurisdictions where state or local law prohibits employment discrimination on the basis of sexual orientation and sexual identity. Schools that operate without state or local laws that protect against harassment or discrimination on the basis of sexual orientation should be mindful of a potential federal anti-discrimination claim. Particularly given the EEOC's current Strategic Enforcement Plan, independent schools need to be cautious. Unless a religious exemption applies, independent schools should add the protected classifications of sexual orientation and gender identity to anti-harassment and discrimination policies. Even if a school qualifies under a religious exemption, it should determine whether its own beliefs, customs, and practices are consistent with restricting hiring based on sexual orientation and gender identity. Finally, supervisors should be regularly trained on applicable harassment and discrimination laws, as well as the school's own policies.

The same general guidelines apply to the student application and enrollment process. Independent schools need to be aware of state or local laws that may prohibit harassment, discrimination, or bullying on the basis of sexual orientation. Even if no law applies, schools should consider adopting policies to protect students on that basis. Training of administrators and others may not only protect a school from legal claims, it may also help support, protect, and educate students.