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43 Lab. & Emp. L. 1 (2014-2015)

handle is hein.journals/laboemplo43 and id is 1 raw text is: 


               FALL 2014
     Section of Labor and
         Employment Law
American Bar Association

        A                                                                                                                     I BAR AScrION
                                                                                                                              Section of
                                                                                                                          Labor and Employment Lai

Th         a                                  a alution AfTIt e rote ti s            rL

In the first national survey of
transgender discrimination, con-
ducted by National Gay and Les-
bian Taskforce and the National
Center for Transgender Equality,
respondents reported that they
experienced unemployment at
twice the rate of the general pop-
ulation. Fifty percent of respon-
dents reported that they had
been harassed at work, and 26
percent of respondents who had
been employed reported that
they lost a job because they were
transgender or did not conform
to gender stereotypes.
   Title VII of the Civil Rights
Act of 1964 does not explic-
itly prohibit discrimination
based on sexual orientation
or gender identity or expres-
sion. Historically, courts have
rejected employment discrimina-
tion claims by LGBT employees
because they interpreted Title
VII to apply strictly to biological
sex, holding that Congress had
not intended to protect LGBT
people when it passed the Civil
Rights Act. But two Supreme
Court decisions have prompted
an evolution in the law toward
use of Title VII's sex discrimina-
tion provision to protect LGBT

   In Price Waterhouse v. Hopkins
(1989), the Supreme Court held
that gender stereotyping is a
form of sex discrimination pro-
hibited by Title VII. After the
plaintiff was denied a partner-
ship in a well-known accounting
firm, a partner advised her to
walk more femininely, talk more
femininely, dress more femi-
ninely, wear make-up, have her
hair styled, and wear jewelry.

The Court held that Hopkins had
an actionable Title VII claim
because [i]n forbidding employ-
ers to discriminate against
individuals because of their sex,
Congress intended to strike at
the entire spectrum of disparate
treatment of men and women
resulting from sex stereotypes.
   The Supreme Court's decision
in Oncale v. Sundown Offshore Oil
Services (1998) acknowledges

that the application of Title VII to
today's workplace has evolved to
cover situations Congress did not
necessarily contemplate when it
passed the statute. The plaintiff
in Oncale presented evidence
that his male coworkers physi-
cally assaulted and threatened to
rape him, while his supervisors
refused to take action to protect
him. The Supreme Court held
that Title VII prohibits sexual
harassment of any kind, even
when the harasser is the same
sex as the harassment victim.
The Court stated that, while
male-on-male sexual harassment
was not the target of Title VII,
statutory prohibitions often go
beyond the principal evil to
cover reasonably comparable
evils, and it is ultimately the pro-
visions of our laws rather than
the principal concerns of our leg-
islators by which we are
   Following these two decisions,
federal courts increasingly have
held that Title VII protects LGBT
employees from sex discrimina-
tion at work. Several courts of
appeal have applied Price Water-
house's sex stereotyping analysis
to find that discrimination against
             continued on page 11

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