Discrimination at work place

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Assignment for HRM 305

Age, Weight, and Sexual Orientation


Overview:

In our Unit 3 assignment, you will cite statistics that are associated with age, weight, and sexual orientation discrimination in the workplace and describe the growing trend of weight discrimination in today’s workplace.


Assignment Details:

Write a 1,000-word paper. Provide a separate overview for each type of discrimination: age, weight, and sexual orientation. Then, answer the question, “Can we eliminate these types of discrimination from the workplace? Be sure to cite statistics that support your findings.


Submission Requirements:

· APA format is required, which includes:

· Title page

· 12pt. font in Times New Roman and double-spaced

· Reference page, with in-text citations

· Entire paper length should be 1,000 words or more

· Include an introduction and conclusion (included in word count!)

Refer to the next page for the grading rubric.

Students: Be sure to read the criteria, by which your paper will be evaluated,
before you write, and again
after you write.

Grading Rubric for
the ‘Age, Weight, and Sexual Orientation’ Assignment

CRITERIA

Deficient

Proficient

Exemplary





0 – 5 Points

6 – 8 Points

9 – 10 Points

Introduction

Does not provide an adequate introduction or is missing.

Introduction is presented, though may not be clear or complete.

Introduction is clearly presented and provides the reader a context for the rest of the paper.



0 – 21 Points

22 – 25 Points

26 – 30 Points

Overview of each type of discrimination

Overviews are inadequate.

Overview of each type is clear but lacking some detail.

Overview of each type of discrimination is clear and detailed, demonstrating a high level of understanding.

Elimination Explanation

Inadequate explanation with little to no supporting research.

Demonstrates an adequate understanding of the issues and how they could be addressed with some supporting research.

Explanation demonstrates a solid understanding of the issues and how they could be addressed with supporting research.





0 – 5 Points

6 – 8 Points

9 – 10 Points

Length of paper

Response was less than 900 words.

Response was between 901-999 words.

Response was 1,000 words or more.

Appropriate citations

References and citations missing or formatting does not resemble APA.

References and citations are present with some errors.

References and citations are present and near perfect.

Clear and professional writing and format

Errors impede professional presentation; guidelines not followed

Few errors that do not impede professional presentation

Writing and format is clear, professional, and error free

20

circumstantial evidence and age discrimination
labor law for supervisors

Mary-Kathryn Zachary, J.D.

The Age Discrimination in
Employment Act (ADEA) was

designed to protect individuals who
are 40 and over from workplace
discrimination. This group of
workers traditionally had been
significantly impacted by ageism
and cost -cutting measures in
business. Sometimes the company
behavior consisted of letting an
older employee go and replacing
him or her with a younger
employee who could be hired at a
lower salar y. Sometimes the
behavior consisted of not hiring an
older person or of terminating one
because of a perception that an
older worker was less willing to
take orders, was less willing to
change, and was less productive
than a younger worker. Older
workers were denied training and
promotion opportunities because
of a concern they would retire
before the company would benefit.

Thus, older workers were much
more likely than younger ones to
be terminated because of age
discrimination and much less likely
to be hired because of such
discrimination.
Age discrimination cases can take
the form of refusal to hire, workplace
harassment, differences in terms and
conditions of employment,
discharge, and unlawful litigation
waivers. Only companies who
employ 20 or more workers are
subject to the provisions of the
ADEA, and these companies have
several defenses available to them.
A company may argue that an
individual was not hired because
they were not as qualified. It may
contend that a worker was
terminated because of financial
exigency and not age. It may argue
that a discharged employee was let
go because of a reorganization, poor
performance, or negative attitude.

Recent sur veys and reports
indicate that workers plan to stay
in the workforce much longer than
in earlier years. Economic reasons
and medical advances have
contributed to older workers’
decisions to continue working.
These employees fall into the
protected categor y under the
ADEA.
A recent case, Mullin v. Temco
Machinery, Inc., 120 FEP Cases 494
(7th Cir. 2013) provides an
illustration of the arguments that
can come up in an age
discrimination case. The case was
before the Seventh Circuit Court of
Appeals on an appeal from a grant
of summary judgment in favor of the
defendant company. In such a
review, the appellate court is
required to view the evidence in the
light most favorable to the non-
moving party, in this case the
plaintiff. If any genuine question

21

for supervisors

of material fact exists that could
result in a decision in favor of the
non-moving party, the case must go
on to trial.
The following is the court’s
discussion of the evidence presented.
At the actual trial, the jury or the
judge in a non-jury case would
decide the credibility of evidence.
The 7th Circuit reversed the grant
of summary judgment and remanded
the case back to the district court
for trial. In doing so, it provided a
valuable discussion of the types of
circumstantial evidence that can be
important in determining company
liability in an age discrimination
case.
The plaintiff, John Mullin, II,
began working as a sales associate
for Midwest Fire & Safety in 1990.
At that time, Midwest was an
authorized dealer for a company
making custom fire trucks and
rescue equipment. Mullin was one
of four to six sales associates for the
state of Indiana during the time of
his employment. As a sales
associate, Mullin was responsible for
a territory covering part of Indiana
and was responsible for about 250
client accounts. He sold fire trucks
and equipment, called on customers,
attended sales meetings, and went
to functions of the fire departments
within his territory.
In 2006, Temco acquired Midwest
. Most of Temco’s sales associates
were over 40 because of the nature
of the job. The sales associate
position required a great deal of
industry knowledge and the products
sold. Although in 2006 or 2007
Mullin had one account taken away
due to a complaint, in 2008 and

2009 he was Temco’s Salesman of
the Year. In fact, he was
responsible for 42% of the fire
trucks sold in 2008 (56% of the
total profit) and 40% of those sold
in 2009 (52% of the total profit).
He was also the oldest of the
salespersons.
In November 2009, Temco hired
a new Vice President and General
Manager of the Indiana sales
division. One of his tasks was to
evaluate the division with the goal
of improving performance. He
instituted changes requiring
salespersons to attend a weekly
meeting, to develop a list of higher
and lower value targets with the
goal of pursuing the higher value
targets, and to compile weekly call
and contact lists. Varying accounts
exist of Mullin’s compliance with
the new policies.
In May 2010, Temco made a
number of sales personnel changes
in Indiana. On May 5, it
terminated a salesperson in his
50’s. The same day the company
hired a 24 year old who was told to
report to work on May 14 as a full
time sales associate. Then a 29
year old was hired as a part time
sales associate. The company noted
in court documents that both men
were inexperienced and young.
Neither of the two new hires had
any background in the sale of fire
trucks. The hiring of these two
sales associates was followed by the
discharge of Mullin on May 13.
Temco’s CEO told Mullin he was
being fired because the company
was paying him too much money
for the sales he was producing. The
two new sales associates attended

a manufacturer’s sales meeting on
May 14—a meeting that Mullin was
supposed to have attended.
Mullin filed a claim based on age
discrimination with the Equal
Employment Opportunity
Commission and subsequently filed
suit in federal court. Temco
responded that Mullin was fired for
poor performance. The district
court granted summary judgment
for Temco, and Mullin appealed to
the Seventh Circuit.
Temco offered several
performance-related arguments in
support of its discharge of Mullin.
They were the following. Mullin’s
productivity was declining. Mullin
missed sales meetings. Mullin
refused to make sales calls or call
on existing accounts as directed.
Mullin lost sales. Mullin
inappropriately communicated
with a competitor through email.
Mullin was late with his list of
contacts/calls. Mullin was a no-
show for a plant tour arranged for
a client. Mullin failed to show up
at two fire department events.
All of the above contentions were
countered by Mullin in the
following manner. Mullin was still
the best performing salesperson.
Other salespersons also missed
sales meetings, and any Mullin
missed were due to necessary client
visits. Other salespersons lost sales,
and Mullin testified that any lost
sales he experienced were caused
by following the company’s explicit
pricing directives. Mullin’s contact
with a competitor was not
inappropriate. Mullin did conduct
the plant tour, a fact verified by the
three people on the tour, all of

22

whom described Mullin’s
performance on the tour as good.
Mullin did not receive an invitation
to one of the fire department events
and did in fact attend the other, a
statement supported by members of
that fire department.
For a plaintiff to prevail in an age
discrimination discharge case, he or
she must show that age was a
motivating factor for the employer’s
decision and had a determining
inf luence on the outcome. The
plaintiff can prove an age-based case
either by direct or indirect evidence.
Furthermore, direct evidence can be
straightforward or circumstantial.
The straightforward type of evidence
would be illustrated by the employer
actually admitting intention to
discriminate on the basis of age.
Such circumstances are rare. An
aggrieved employee will usually
present evidence that does not
directly prove discrimination but
from which discrimination can be
inferred. This is circumstantial
evidence. Common types of
circumstantial evidence offered by
a plaintiff may be suspicious timing
of an adverse employment action,
ambiguous statements or conduct by
the employer, examples of
individuals outside the protected
class being afforded better
treatment, inconsistent or shifting
reasons presented by a company for
the adverse employment action, and
proof that the plaintiff was qualified
for the job but the job was given to
someone outside the protected class
based on pretextual reasons.
Applying the above analysis to the
instant case, the Seventh Circuit
concluded that Mullin had provided

enough evidence to convince a
reasonable jury that he was the
victim of unlawful age
discrimination. He had offered
enough circumstantial evidence, in
particular, suspicious timing and
ambiguous statements, to satisfy
the court. Each of the reasons
given by the company for his
discharge was contested and
possibly even inaccurate. Thus, the
case merited continuing to trial.
The grant of summary judgment
for the defendant was
inappropriate.
The f lurry of sales personnel
actions in May provided the
backdrop for the suspicious timing
argument. The court commented
on the following. Within a period
of two weeks, two young,
inexperienced men outside the
protected class had been hired, and
two older, experienced, and largely
successful sales associates had been
terminated, with the younger men
assigned the work formerly
performed by Mullin. These
personnel decisions were
particularly surprising given that
the company vice president had
stated that the best period in a
salesperson’s l ife is generally
between 45 and 65 and that such
employees were sought out. On
top of that, although Temco had
told Mullin that f inancial
considerations motivated the
termination (i.e., his salary was not
justified by his sales), the company
went on to hire two younger
workers for close to what Mullin,
the incumbent salesperson of the
year, was earning. With respect to
ambiguous statements, the

appellate court noted that company
management mention of youth in
the context of its hiring decisions
was at the least, ambiguous in its
meaning, and clearly indicated that
age was part of the thought process
used in the hiring decisions.
Mullin had also argued that the
company’s shifting and inconsistent
reasons for his termination proved
that they were really a pretext for
unlawful discrimination. To be
successful with an argument that
proffered reasons are really a
pretext for discrimination, a
plaintiff in an age-based case must
either show that it is more likely
than not that a discriminatory as
opposed to nondiscriminatory
reason motivated an adverse
employment action, or that the
employer’s reason for the adverse
action is simply not believable. As
paraphrased by the court, the
plaintiff must show that the reasons
given for the adverse employment
action are “phony” excuses. If a
company changes the reasons given
for an action, the shifting
explanations can indicate pretext.
Here, Mullin had offered evidence
that each reason given by the
defendant company for discharging
him was contested, inaccurate, or
both. Credibility issues had been
successfully raised by the plaintiff.
Thus, the case should proceed to
trial and the issues in question
decided by a jury.
Reviewing each of the reasons
given by the defendant for its
decision to discharge Mullin, the
appellate court presented the
question raised. First, the court
discussed the financial reason

23

given. The company had told
Mullin that from a financial
standpoint, his sales did not justify
his salary; however, Mullin was the
top salesperson, the company made
no offer to reduce his salary and
keep him on, and it hired two
inexperienced individuals at almost
the same salary. Mullin was earning
$56,000. The two new employees
were earning $48,000 (the part-time
employee) and $42,000 (the full-
time employee).
Next, the company maintained
that the two new hires did not
replace Mullin; rather his sales
territory was divided among three
people, with the third between a 65
year old employee. The 65 year old
employee was also use by the
company to compute the average age
of its sales associates. However, the
court observed, the 65 year old was
a handyman, not a sales associate,
and it was possible that the company
had included him as a sales
associate to make the average age
of its sales force seem higher than
it actually was.
The company had also argued
that Mullin had not fulfilled his
responsibilities when he failed to
attend three client events. The
court noted that Mullin had
disputed the company’s version with
respect to each incident and had
offered supporting testimony for two
of them. It reasoned that enough
inaccuracies could make the jury
question the company’s credibility
with respect to the reasons given for
the plaintiff’s discharge.
The defendant further offered lost
sales by the plaintiff as a reason for
his termination. However, the court
noted, the company had admitted

that other sales associates had lost
sales. Mullin had presented
evidence that it was the company’s
pricing directives that resulted in
any lost sales attributed to him.
The existence of a genuine dispute
about the lost sales justified this
issue proceeding to trial for
determination.
Temco contended that Mullin was
not performing at an appropriate
level. Yet, the court observed,
Mullin had been the top
salesperson for two years and was
in the lead again at the time of his
termination. The company had
discounted this achievement by
stating that Mullin had the most
desirable territory, a contention
disputed by Mullin. Again, this was
a genuine issue for determination
by a jury.
The employer also argued that
Mullin did not submit his contacts/
call lists on time. The court stated
that Mullin had denied this.
Furthermore, although two emails
between company officials
indicated that this list might have
been late on those particular
occasions, the company had
destroyed its call reports. Thus,
there were no call reports to support
their allegations or to enable
Mullin to show that he was in
compliance or to compare his
behavior with that of the other
sales associates. A question also
existed about the timing of the
destruction of the call reports.
Additionally, the company
complained that Mullin had not
attended ever y weekly sales
meeting. The court noted that
Mullin had rebutted this allegation
by stating that other sales associates

sometimes missed the meetings, he
was making necessary visits to
clients during the meetings he
missed, and the company had never
raised the issue of his attendance
with him. The Seventh Circuit
concluded that this factual dispute
should also go to trial.
Finally, with respect to Temco’s
allegation that Mullin engaged in
an inappropriate email
communication with a competitor,
the court pointed out that the
company had not produced a copy
of that email. Therefore, at that
point in the litigation, the court
would accept Mullin’s argument
that he had not engaged in
inappropriate communications.
The Seventh Circuit concluded by
stating that no single example of
age discrimination offered by the
plaintiff would be sufficient by itself
to thwart the defendant’s motion
for summary judgment. However,
taken together, they did provide “a
string of questionable conduct, from
the suspicious timing of personnel
decisions to ambiguous statements
about age to multiple seemingly
inaccurate al legations.” The
plaintiff had genuinely disputed
each reason given by Temco for his
termination. Therefore, multiple
material factual determinations
remained for the jury.
Although the ultimate outcome of
this case remains to be decided, the
Seventh Circuit’s discussion of the
circumstantial evidence presented is
extremely useful to companies. It
details the kinds of factors that are
important to a court in deciding if
unlawful age discrimination has
actually occurred or if a company
has justifiable reasons for its actions.

SV

24

IN A NUTSHELL

(1.) The Age Discrimination in
Employment Act prohibits workplace
discrimination based on age against
those employees who are 40 and over
by companies with at least 20
employees.

(2.) To win an age-based case, an
individual has to show that age was a
motivating reason for an adverse
employment action and directly
influenced the action.

(3.) An aggrieved worker may use
direct or circumstantial evidence to
prove an age discrimination case.

(4.) Circumstantial evidence may
include suspicious timing, shifting or
inconsistent reasons given for an
adverse employment action,
ambiguous statements and behavior
on behalf of the defendant company,
and differential treatment being given
to individuals outside the protected
class.

(5.) Reasons given by a company
for taking an adverse employment
action may be regarded as a pretext
for discrimination if it appears that
they are not believable or that it is
more likely than not that the adverse
employment action taken was
motivated by unlawful discrimination.

(6.) Managers and other
supervisory employees should be
aware of factors that could be
considered circumstantial evidence of
unlawful age discrimination and
exercise care when dealing with
situations involving individuals who
are in the protected age classification.

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228

Industrial Law Journal, Vol. 35, No. 3, September 2006 � Industrial Law Society; all rights reserved. For Permissions,
please email: [email protected]
doi:10.1093/indlaw/dwl018

Justifying Age Discrimination

JONATHAN SWIFT*

ABSTRACT

The characteristics of age discrimination as provided for in the Employment Equality
(Age) Discrimination Regulations set it apart from existing anti-discrimination schemes.
The ambit of the Regulations is limited to the employment field. Within this area, the
legislation does not simply seek to identify a characteristic of a specific minority group
and then remove that factor from the decision-making process. Instead, working from a
quality common to all (age), the Regulations seek only to prevent reliance on it for pur-
poses that are ‘illegitimate’ or if the consequences of doing so are ‘disproportionate’. This
is necessary: first because the Regulations do not seek merely to protect discrete age
groups, and in practice the interests of persons of different age may well be in conflict;
secondly because many decision-making criteria that appear objective are in substance,
age-related. In order to sort ‘bad’ discrimination from ‘good’ discrimination a notion of
substantive equality must exist. The Regulations themselves give little indication of what
equality should mean. There is no existing consensus from which the answer can be
drawn, and the rationales that have underpinned previous anti-discrimination legislation
are not easily transposed to age discrimination. The practical application of the justifica-
tion defence contained in Regulation 3 will shape the substantive meaning of equality in
this area. This article seeks to identify what the proper approach should be to the provi-
sions of Regulation 3, and suggests that this should be derived from considerations of
transparent decision-making, and the need to respect the dignity of the individual.

1. INTRODUCTION

At face value the Employment Equality (Age) Regulations1 appear to present
few surprises. Some of the provisions, such as those relating to retirement and
pension provision may seem complex or cumbersome, but the basic structure of
the legislation is very familiar to employment lawyers, providing for prohibitions
on direct discrimination, indirect discrimination, discrimination by way of har-
assment, and discrimination by way of victimisation. However, if this is the

* Barrister, 11 King’s Bench Walk Chambers, London. email: [email protected]. This article is based
on a talk given to the Industrial Law Society in March 2006, but has its origins as long ago as 2002, in
a paper for the Bar European Group annual conference. I would particularly like to thank Timothy
Pitt-Payne (of 11 King’s Bench Walk Chambers), who co-authored the 2002 paper, for his comments
on this article.

1 SI 2006/1031.

September 2006 Justifying Age Discrimination

229

appearance given by the Age Discrimination Regulations, it is deceptive. In fact
the Regulations represent a significant new step in terms of anti-discrimination
schemes, and this is a step into the unknown. The unknown factor at the heart of
the Regulations is that no clear view is given as to what the substantive content
of equality should be in this area. To date, anti-discrimination legislation has
sought to neutralise specific factors which might otherwise form part of a
decision-making process. In doing so they have reflected a consensus that deci-
sions should not be based on factors such as sex, race or sexuality. Although the
disability discrimination provisions are more complex and fact-sensitive, they
too are rooted in this basic rationale. In each of these schemes the need to
remove specific considerations from the way in which decisions are taken means
that the content of the equality that is required is clear. The Age Discrimination
Regulations do not work from such a premise. First, they do not seek to identify
a characteristic shared only by a specific minority. The Regulations are ‘age-
blind’, and are not aimed only at persons in discrete age groups. Second, they do
not seek to remove age from the decision-making process for all purposes. Built
in not only to the definition of indirect discrimination, but also to the definition
of direct discrimination is the notion that some forms of age-based decision making
are justified.2 The fact that these decisions are lawful highlights uncertainty at
the core of the Regulations. What form of equality are the Regulations intended
to bring; and how much of it is appropriate?

2. LIMITED AMBITIONS

One apparently superficial aspect of the Regulations that is striking is that the
legislation applies only in the employment field. There is no attempt here to
reproduce the more wide-ranging schemes that have characterised other anti-
discrimination legislation. Yet this should not be regarded as a matter of form or
mere coverage since it helps characterise the extent to which the Regulations are
intended to be, and can properly be regarded as, an engine not only for legal
change but also for social and economic change. The fact that the Regulations
are directed only to the employment field, and are not directed also, for
example, to businesses that supply the employees who are subject to the Regula-
tions strongly indicates the form of equality that underlies the Regulations is
limited. In this environment we should be both realistic and pragmatic in our
expectations for the Age Discrimination Regulations. Specifically, considerations of
pragmatism should guide the proper approach to the meaning of equality in this

2 See in particular, Regulation 3 (including the central justification provision), and also Regulation
32 which in principle permits service-related benefits, including pay.

Industrial Law Journal Volume 35

230

area, and as a result, to the circumstances in which less favourable treatment on
grounds of age should be regarded as lawful.

The actual scope of the Age Discrimination Regulations is in stark contrast
with the lofty (and basically utilitarian) aims of its parent, the Framework Directive.
In its preamble, the Directive refers to:

[8]the need to pay particular attention to supporting older workers, in order to increase
their participation in the work force

[9]guaranteeing equal opportunities for all to contribute strongly to the full participation of
citizens in economic, cultural and social life and to realising their potential.

[11]the attainment of a high level of employment and social protection, raising the
standard of living and the quality of life, economic and social cohesion and solidarity
and the free movement of persons

By contrast, the provisions of the Age Discrimination Regulations are mundane.
The fact that the legislation targeted only at employment issues undermines any
credible argument that it is aimed at removing the real inequalities resulting
from age (and specifically, old age). This only serves to emphasise the paradox
that that the present political climate creates. On the one hand there is an
increasing determination to promote equality, by prohibiting more and more
forms of discrimination. Yet at the same time there is an increasing acceptance
of inequality. Both socialism and traditional social democracy are in retreat and
have been for some time and there is little faith in the ability of the state to
reduce the inequalities inherent in a market economy, either by an increased
level of state control over the economy or by redistributive taxation. Taken
together, the consequence is a curious irony. Even in the employment field it
would seem that while some inequalities are intolerable (for example unequal
treatment between bankers of different ages), others are tolerable (for instance,
the hundred-fold difference in the remuneration of a banker and a cleaner who
works in the same building, on the minimum wage). Outside the employment
field there is no attempt at all to legislate or otherwise regulate the way in which
age is an appropriate or relevant consideration when deciding, for example to
whom or on what terms services should be provided.

3. THE ‘PROBLEM’ OF EQUALITY IN AGE DISCRIMINATION LEGISLATION

In this context what expectations are sensible and appropriate for the Age
Discrimination Regulations; to what extent should faith be placed in the new law
as a means radically to change the way in which age is perceived as (or permitted
to be) relevant to any decision-making process? The provisions within the Age
Discrimination Regulations that are central to this question are those relating to

September 2006 Justifying Age Discrimination

231

the defence of justification. As already indicated, the one matter that sets the
Regulations apart from anti-discrimination legislation to date is the possibility
that acts which would otherwise amount to direct discrimination are capable of
being justified, and as such, lawful. This is expressly provided for by Regulation 3
which (formulated positively) provides for direct discrimination to be lawful if
the alleged discriminator can show the treatment identified as ‘less favourable
treatment’ to be a ‘proportionate means of achieving a legitimate aim’. Regula-
tion 32 is also important on this point. It concerns service related benefits, bene-
fits which, at the least, discriminate indirectly on grounds of age and in many
instances could properly be regarded as systems of direct discrimination. In rela-
tion to such benefits an employer is not required to justify disparate treatment at
all if the employee has less than five-years service. If the employee has more
than five-years service the disparity will be lawful if it ‘reasonably appears’ to the
employer that using length of service as a criterion for determining how employ-
ees are paid ‘fulfils a business need of his undertaking’.

Although the availability of justification (in whatever form) is conveniently
referred to as a ‘defence’, more properly, these provisions, and in particular Reg-
ulation 3, are the ones that that are integral to what is meant by equality in this
area, since they identify the forms of age discrimination that are legitimate (and
therefore lawful) and those which are not. What equality should mean in this
area is a thorny problem. In deciding what the scope of the justification defence
should be, courts and tribunals will need to have regard to the conceptual diffi-
culties that underlay any attempt at age discrimination legislation, and the fact
that as a result of these difficulties there is no clear consensus on what the con-
tent of equality here should be.

Conceptually, age discrimination legislation is different from other anti-
discrimination schemes. Unlike discrimination law to date, age discrimination
legislation does not seek to address the difficulties faced by a discrete group
identified by a fixed quality. We are all people ‘of age’, and in the course of a life
it is likely that everyone will encounter the benefits and the detriments of age
when decisions are taken that concern their interests. Outside the employment
field Parliament’s general expectation appears to be that people should have
the fortitude to withstand these consequences, or at the least that it is not neces-
sary for the law to intervene to define what is permissible and what is not. Within
the employment field this is no longer the position, but the fact here that some
forms of age discrimination will be lawful because they will be justified means
that unlike in other areas the issue is not simply to demonstrate that age has
been removed from any decision-making process. The consequence of Regu-
lation 3, and for that matter Regulation 32, is that age can be a relevant consider-
ation. What is not clear is the extent to which it is permissible to take it into
account.

Industrial Law Journal Volume 35

232

This leads directly to the issue of consensus (or rather the present lack of any
relevant consensus). In relation to sex and race discrimination it is not just 30
years of practical experience that has formed the consensus in these areas.
Although in those areas we may still argue as to the practical application of the
principle of equality in specific circumstances, there is general acceptance of the
substantive requirement of that principle: neither a person’s sex nor their race
should form the basis on which they are treated in a specific way. Even 30 years
ago this was the premise that underpinned the legislation, and that premise was
well-understood. The same cannot be said for age discrimination legislation.
Although all would no doubt agree that neither the old or the young should be
patronised or prejudged simply because they are old or young, the legislation as
drafted is not about simply protecting the old or the young, it is about less
favourable treatment on grounds of age. As such there is a conflict at the heart of
the legislation not only because in the labour market conflicts of interest exist
between the old and the young, but also because the characteristics of age are
ones that we all possess and all use when making day to day decisions. If truthful,
it is unlikely that there are many people who could honestly say that they have
never allowed age to influence decisions relating to others, not merely personal
decisions but also practical and professional decisions. Many occupations are
dominated by notions of ‘seniority’ and ‘experience’ both of which are closely
synonymous with age. Decisions are made on this basis every day. Although it is
tolerably clear that the Age Discrimination Regulations are not intended to out-
law these considerations for all purposes, the language of Regulation 3 does not
permit too many other certainties. What use may be made of considerations of
‘seniority’ or ‘experience’ will depend on the approach taken to the irritatingly
vague notion of whether the treatment in question is a ‘proportionate means of
achieving a legitimate aim’. Yet the reason why this phrase is irritatingly vague is
because as yet there is no consensus, or even leading view as to what equality
requires for the purposes of age discrimination.

The existence of the justification defence requires us to distinguish between
discrimination in the pejorative (and unlawful) sense, and discrimination in the
sense of measured and appropriate choice. Both aspects of the defence as
drafted—a ‘legitimate aim’ obtained by ‘proportionate means’—will require
Tribunals and other Courts to identify what our notion of equality is for these
purposes. Of necessity this will start from case to case; ultimately a more princi-
pled approach might emerge.3 Yet regardless of where or when this issue is first
addressed, what is important is to appreciate the different notions of equality

3 Although if the application of Regulation 3 comes to be regarded by the appeal courts primarily
as a question of fact, the development of a principled framework will be hampered and may
ultimately be piecemeal and patchwork.

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that could inform the approach taken to the questions ‘what is a legitimate aim’
and ‘what are the proportionate means of achieving it’.

4. JUSTIFICATION AS DRAFTED

The fact that the wording of Regulation 3 is simplicity itself, has itself been a
cause of criticism. Regulation 3 is based on Article 6 of the Framework Directive.
Article 6(1) provides:

Notwithstanding Article 2(2), Member States may provide that differences of treatment on
grounds of age shall not constitute discrimination, if, within the context of national law, they
are objectively and reasonably justified by a legitimate aim, including legitimate employment
policy, labour market and vocational training objectives, and if the means of achieving that
aim are appropriate and necessary. Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training,
employment and occupation, including dismissal and remuneration conditions, for
young people, older workers and persons with caring responsibilities in order to pro-
mote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in ser-
vice for access to employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is based on the training require-
ments of the post in question or the need for a reasonable period of employment
before retirement.

The original version of the Regulations repeated (as Regulation 3(2)) the spe-
cific examples provided within Regulation 6. The final draft of the Regulations
omitted these examples on the basis that their inclusion was unnecessary. Regu-
lation 3 now provides:

(1) For the purposes of these Regulations, a person (‘A’) discriminates against another
(‘B’) if—

(a) on grounds of B’s age, A treats B less favourably than he treats or would treat
other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply
equally to persons not of the same age group as B, but—

(i) which puts or would put persons of the same age group as B at a particular
disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,

and A cannot show the treatment, or as the case may be, provision, criterion or prac-
tice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B’s case with that of another person under paragraph (1) must be
such that the relevant circumstances in the one case are the same, or not materially
different, in the other.

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(3) In this Regulation—

(a) ‘age group’ means a group of persons defined by reference to age, whether by
reference to a particular age or a range of ages; and

(b) the reference in paragraph (1)(a) to B’s age includes B’s apparent age.

The vagueness of the language of the defence in Regulation 3(1) is both a neces-
sity and a virtue. First it is wholly consistent with the fact that the justification
defence has to be applied on a case by case basis depending on both the specific
circumstances of the employee and those of the employer. No legislature could
sensibly anticipate the possible legitimate aims that might arise, let alone have
any concept how the principle of proportionality would manifest itself in
any given set of circumstances. Secondly, simply importing the language of the
specific examples provided in Article 6(1) of the Directive runs the risk that
Regulation 3 would be applied on the basis that the examples were prescriptive
limits rather than merely descriptive examples. Thirdly, the examples actually
provided in Article 6, even as examples, are far from helpful when it comes to
determining the substantive meaning of equality in this context. Read literally
(or even if taken as mere guidance) the examples provided by Article 6 would
permit the operation of quota systems (6(1)(a)); the operation of all service-
based schemes of remuneration; and the operation of age-based recruitment and
dismissal procedures ((6)(1)(b) and (c)). As used in the Directive, these are
examples of treatment that is permitted despite the ‘principle of equal treatment’
set out at Article 2 of the Directive. To have this as a starting point would leave
little room for any substantive notion of equality to develop since the Article 6
exceptions to the Article 2 principle of equal treatment would have the potential
to undermine the principle in its entirety.

The other reason why it is necessary for Regulation 3 to be formulated in
flexible terms comes back to the limited ambit of the Age Discrimination Regu-
lations. The ‘victims’ of the legislation are employers. Despite the high principles
referred to and set out in the Preamble to the Directive, the legislative instru-
ment that is meant to achieve these purposes is directed only to a narrow field
(employment), and within that field only to persons who—for the most part—
will have little influence or control over matters of social and economic policy at
anything approaching a strategic level. In these circumstances no purpose would
be served by a justification defence that identified specific legitimate aims as if
the decisions to be taken were aspects of a planned economy. In the circum-
stances that do prevail there would be little point in permitting employers to jus-
tify less favourable treatment if they were expected, let alone permitted, to rely
only on generalised pre-drafted considerations that are applicable to their own
businesses only in the most tangential form. Transparent decision making is possible
only if employers are able to formulate for themselves the specific explanations

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for their actions. In turn this allows a substantive approach to equality to develop
in a way that is clear and, hopefully, principled.

5. WHAT SHOULD EQUALITY MEAN IN PRACTICE?

A. Legitimate Aims

What is described above as the necessity and virtue of Regulation 3 is also—in
the absence of any case law—the basis for practical criticism of it: it is simply too
flexible to allow what is and what is not permitted to be predicted. A starting
point for some measure of predictability is to consider what aims could be legiti-
mate for this purpose. The starting point for this should be to consider what type
of fairness/equality the legislation should require.

At a high level of generality there are three obvious arguments/justifications
for anti-discrimination legislation. First discrimination is irrational. The argu-
ment runs along the following lines. People who exercise significant social power
ought to do so rationally. They ought to make decisions by reference to relevant
considerations, and to ignore irrelevant considerations. They ought to treat like
cases alike, rather than making arbitrary distinctions between cases. So, for
instance, to prefer a white candidate over a better-qualified black candidate is
irrational, because the difference in race has nothing to do with their respective
ability to do the job. Secondly, discrimination is unjust. This is the human rights-
based justification for anti-discrimination legislation. The argument is that it is
unfair for people to suffer disadvantage as a result of characteristics that are
immutable and un-chosen (such as race or sex), or are a fundamental part of
their identity (such as religion or sexual orientation).4 Taken to its furthest
extent, this approach requires that various desirable goods (including access to
work and income) be fairly distributed between the different groups that make
up society. Thirdly, discrimination is inefficient. This justification focuses on eco-
nomics and overall utility rather than on social justice. From this perspective, a
society that tolerates discrimination is a society that systematically underesti-
mates the potential of large numbers of its members. Such a society will waste
vast quantities of human capital, and on this rationale discrimination is a luxury
that simply cannot be afforded.5

4 Although the context is completely different, see R(A) v East Sussex County Council [2003]
EWHC 167 per Munby J at paras 86–7, as to human dignity as the core value both of the European
Convention on Human Rights, and within Council of Europe states.

5 For further and more detailed analysis of the various notions that are capable of being encapsu-
lated within the idea of equality, see S. Fredman, ‘The Age of Equality’ in S. Fredman and S. Spencer
(eds), Age as an Equality Issue (Hart, 2003).

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Previous anti-discrimination legislation has been based on a range of consider-
ations within the first two of these arguments: treating like cases alike; taking
decisions on the basis of merit; and respect for personal integrity and dignity.
These explanations are clearly appropriate for legislation aimed at preventing
discrimination based on fixed qualities such as race, sex or disability.6 They apply
with equal force to the areas of sexuality and religion and belief. The difficultly is
that they fit less well in the context of age discrimination legislation. For
example, the DTI consultation paper on age discrimination stated ‘the legitimate
aim cannot be related to age discrimination itself’ and provided the following
example (and response).7

A retailer of trendy fashion items wants to employ young shop assistants because it
believes that this will contribute to its aim of targeting young buyers. Trying to attract a
young target group will not be a legitimate aim, because this has an age discriminatory
aspect.

There are many comments that ould be made in response to this example (not
the least as to the bizarre conclusion that it is not a legitimate aim for a retailer to
try and attract to his shop people who might want to buy what he has for sale),
but for present purposes one point needs to be considered. If this shop owner has
to choose between employing an 18-year-old and a 40-year-old, in what relevant
sense could these two potential shop assistants be said to be ‘alike’? If in this
situation the employer is required to choose on the basis of experience, chances
are that the older person will always win. Self-evidently, experience is itself
an age-related factor. Yet why should choosing on the basis of experience be
the pursuit of a legitimate aim, but choosing on the basis that a younger shop

6 The Disability Discrimination Act (both in its original 1995 form, and as amended in order to
implement the Framework Directive) recognised that the implementation of equality for the disa-
bled was more complex than in the areas or sex or race equality, yet the clear aim of this legislation
was a notion of equality substantially the same as applied in the Sex Discrimination Act and the Race
Relations Act. Although direct discrimination could (and still can) be justified (see original section
5(1), present section 3A(1)), the possibility of justification is limited by the accompanying obligation
to make reasonable adjustments (original section 6, present section 4A). These two obligations then
merge with the consequence that if there has been a failure to make reasonable adjustments, a justifi-
cation defence is not available unless it can been shown that treatment would be justified even if
reasonable adjustments had been made (see original section 5(5), present section 3A(6)). Thus the
scheme of this legislation aims first (through the obligation to make reasonable adjustments) to cre-
ate as level a pitch as possible, and second, thereafter to permit justification only to the extent that
the consequences of the relevant disability themselves prevent like for like equality (see, the provi-
sions of original section 5(3), and present section 3A(3)). As a result, for disability discrimination, the
obligation to make reasonable adjustments sets the nature and substance of the equality that is
required.

7 DTI ‘Equality and Diversity: Coming of Age. Consultation on the draft Employment Equality
(Age) Regulations 2006’ (July 2005) at §4.1.18.

September 2006 Justifying Age Discrimination

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assistant would make customer’s more likely to come in, not be the pursuit of a
legitimate aim for this shop keeper?

Similar points arise if the principle that underpins the legislation is that deci-
sions should be taken on the basis of merit: if merit is the benchmark how is the
content of ‘merit’ to be determined? If merit is equated with skills and experi-
ence this is likely to act in favour of those in their working prime—neither ham-
pered by inexperience nor withered by age—and therefore to the disadvantage
of both the older and the younger. The rights-based explanations for preventing
discrimination also run into difficulties. If the end-point of these explanations is
some form of distributive justice, the fair distribution of benefits between per-
sons in different age groups brings with it the necessary consequence that some
will not be allowed to reach their full potential because of their age.

Thus the short point is that none of the criteria that we use for the purposes of
existing anti-discrimination legislation to try and distinguish between decisions
that are free from unlawful discrimination and those that are not, are themselves
age-neutral. None translates well to this new context mainly because previous
legislation has operated by identifying a discrete group and then requiring that
the prime characteristic(s) of that group cannot be used as the basis of choice.
Age discrimination legislation—and in particular legislation like the present,
that is age-blind—cannot sensibly work on the same basis.

Only one well-received argument against discrimination survives this diffi-
culty—the argument that discrimination offends the dignity of the individual
because it is based on the perpetuation of stereotypes and pre-conceptions, not
on matters based in fact. This points to the proper ambit of what is capable of
being a legitimate aim. Legitimate aims should be read widely enough to include
aims that are related to age (but not age itself, or for its own sake). Not age itself
or for its own sake because this is akin to stereotyping. At the least it ought to be
clear that, in relation to age, the principle of equality requires this form of rea-
soning to be rejected. But this apart, what is capable of being a legitimate aim
ought to turn on whether the employer can demonstrate that he did have a par-
ticular objective and that that objective was one that he had a reasonable and
rational basis for pursuing. A further point to make is that it is important when
considering how to apply Regulation 3 not to dwell exclusively on the nuances of
what can be a legitimate aim. The issue of proportionate means is an equally
important part of Regulation 3 as drafted, and in practice may well be a more
sensitive tool by which to evaluate the action that the employer has taken.

One reason for such an approach to the legitimate aim issue is the fact that in
many cases it will be difficult to formulate a legitimate aim that is not in some
way linked to age. Take the example of an employer who, faced with severe eco-
nomic circumstances decides that he has to dismiss half of his workforce on
grounds of redundancy. He has to choose which half will be dismissed; but on

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what basis does he/can he choose? Last in first out; first in first out; quotas aimed
at retaining an ‘age-balanced’ work force; some form of ‘selection matrix’? On this
example, the problems arising under the Regulations could be characterised as
ones of indirect than direct discrimination, but the question of what is capable of
amounting to a legitimate aim remains the same. LIFO, FIFO, and the quota
option are all selection methods that are clearly related to age in one way or
another, and will represent aims that impact on the age of the part of workforce
that remains. However, depending on the specific circumstances of the employer
and his business, each is capable of fulfilling a legitimate business objective. In
practice, choosing the selection matrix option is equally likely to offend a rule that
prevented legitimate aims being related to age. Selection matrices are often
regarded as the magic bullet option for redundancy exercises, but the practical
problem (and the reason why they are often the road to perdition rather than sal-
vation), is that every matrix is only as good as the criteria within it. Apparently
neutral criteria are age-loaded. ‘Skills’ and ‘experience’ are obvious examples that
tend to favour those in their working prime. By contrast ‘relevant qualifications’
might well favour those who are younger and have more recently entered the
labour market, at the expense of those who are ‘qualified by experience’.

A second reason is that the Regulations themselves do permit age-related
objectives to be pursued. The most obvious is Regulation 32 which permits
employers to retain benefit schemes based on length of service if such benefits
reasonably appear to the employer to ‘fulfil a business need of his undertaking’
either prospectively by encouraging loyalty, or retrospectively by rewarding
experience. It would be strange indeed if legislation that in principle permitted
remuneration to be based on length of service, did not permit other steps to be
taken for like reason, subject only to a qualification along the same lines.

In addition, things capable of being legitimate aims ought to include economic
reasons—all economic reasons. On this point the statement provided by the DTI
at the time of the consultation exercise is Delphic. In relation to ‘legitimate aims’
the following was stated.8

A wide variety of aims may be considered as legitimate. The aim must correspond with
a real need on the part of the employer (or other person or organisation wishing to
apply a discriminatory practice). Economic factors such a business needs and consider-
ations of efficiency may also be legitimate aims. However, discrimination will not be
justified merely because it may be more expensive not to discriminate.

At first blush this is odd because on the one hand it does suggest that some form
of cost/benefit analysis can take place—viz ‘considerations of efficiency’; but on

8 DTI ‘Equality and Diversity: Coming of Age. Consultation on the draft Employment Equality
(Age) Regulations 2006’ (July 2005) at §4.1.16.

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the other hand it suggests that cost itself should not be determinative. Although
it is possible to argue that all an employer is prevented from doing is claiming the
existence of a legitimate aim by merely pointing to the existence of an extra cost
(rather than a more comprehensive evaluation of efficiency), in practice the
attempt to draw this line fails. What something costs is inevitably one aspect—
and probably an important aspect—of whether it is efficient to do it.

This guidance from the DTI has led one leading firm of solicitors to provide
the following example in its guidance on the Regulations:9

An employer does not allow employees under 25 to drive a company car. It seeks to jus-
tify the discrimination on the basis that insurance premiums more than double for this
category of employee. An employer is unlikely to be able to justify discrimination on
cost alone.

If this is right, this is a problem: if this employer needs employees to drive but
cannot afford insurance premiums that cover all his workforce (regardless of
age), what is he meant to do? This example provides a particularly hard case
since nothing in the Age Discrimination Regulations requires the providers of
services (for example, insurers) to provide their services at the same price
regardless of the age of the customer/consumer, and the chances are that if one
insurer regards drivers under 25 as a poor risk, all others will have adopted the
same position, not on the basis that they dislike those under 25 but on a genuine
assessment of claim rates over the years.

In such circumstances the approach taken to what is capable of being a legiti-
mate aim must be informed by the limited scope of the Age Discrimination Reg-
ulations. There is little point in trying to assess the legality of an employer’s
actions without taking into account the commercial environment in which he
operates. It is important to recognise that an assessment on this basis is not the
functional equivalent of, for example, permitting an employer to refuse to
employ black workers ‘because his customers don’t like them’. It is clear that the
notion of equality within the Race Relations Act 1976 prevents considerations of
race from entering the decision making process. It is equally clear that the Age
Discrimination Regulations do not require the same approach.10

B. Proportionate Means

One reason why the use of proportionality and approaches related to it have
become increasingly common over recent years as a means of distinguishing the
lawful from the unlawful, is precisely because they encapsulate a concept that

9 Apologies to Lewis Silkin LLP for, from the many examples available, choosing this one.
10 Regulation 32 being the prime example of this.

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does not itself prescribe any specific level of scrutiny. Rather it permits legality
to be measured in specifics on the facts of each case. This is most clear from the
jurisprudence of the European Court of Human Rights. The Convention rights
that are qualified rights, are framed so as to permit interference by public
authorities if (amongst other requirements) the interference is ‘necessary in a
democratic society’ for the achievement/protection of various specified interests.

The case law on what is ‘necessary’ for these purposes spawned both the concept
of proportionality and its Siamese twin ‘the margin of appreciation’. In short,
‘necessary’ for these purposes did not in fact mean absolutely necessary; rather it
was more akin to ‘reasonably necessary’. Moreover, for the purposes of deter-
mining what action might be available as reasonably necessary it was accepted that
in most cases there would be no necessary ‘right’ answer. On questions as to the
substantive application of human rights, public authorities ought to be permitted
to choose, albeit within appropriate boundaries. In the human rights context, the
benefit of this approach is that it is a mechanism that is sensitive to the specific
rights in play in any specific situation. It is also possible, on issues of genuine
social and political choice, for proper respect to be afforded to the necessity that
democratically elected bodies should not be subject to second-guessing by une-
lected judges. By contrast, on issues closer to the expertise of the courts, the margin
of appreciation becomes more narrow. For the purposes of the Human Rights
Act the ‘margin of appreciation’ has become the ‘discretionary area of judgment’.

For the purposes of the Age Discrimination Regulations, the arguments and
considerations that have informed what is the ‘discretionary area of judgment’ in
human rights cases are not really in play. The liberty to take a specific employ-
ment decision has nothing to do with any notion of democratic accountability.
The decisions that will be scrutinised are simply not on the same plane. Never-
theless, the language of Regulation 3 does require that some form of leeway
should be available to employers, and what will be important is the point at
which the level of review undertaken by courts and tribunals will be set. At the
extremes, there is, on the one hand, the possibility that in this context propor-
tionality will turn out to be something closely akin to full merits review; at the
other end of the scale is the prospect of ‘mere’ rationality testing. For labour law-
yers, the most obvious source to explore is the case law from Sex Discrimination
Act cases. This is a jurisdiction long underpinned by European law, and the lan-
guage of the Regulations is not that far removed from the concepts habitually
relied on by the ECJ when considering issues of objective justification, usually in
the context of indirect discrimination.

In that context the case-law has seen an attempt to find some sort of mid-point
between the two possible extremes. In Hardy & Hansons plc v Lax,11 the Court

11 [2005] ICR 1565.

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of Appeal concluded that in considering objective justification, a tribunal was
not bound to accept the employer’s view of the matter, but was required to make
its own judgment as to whether, on a fair and detailed analysis of the working
practices and business considerations involved, the practice was reasonably
necessary. On this analysis the approach is not that of the range of reasonable
responses; it is a tougher test for the employer to meet; but the employer’s
decision is not subject to a full merits review. To the same effect, the EAT in BA
v Starmer12 stated that the test was an objective one, and that the while the
decision of the employer and the business reasons for it should be respected,
they should not be uncritically accepted.

However, there is possible difficulty in simply transposing the approach
adopted in the area of sex discrimination to the new context of age discrimina-
tion. First, unlike the provisions of the Sex Discrimination Act, the Age Discrim-
ination Regulations do work from a premise that in some situations less
favourable treatment (rather than merely some forms of disparate impact) on
grounds of age should be lawful. Second, the justifications for sex discrimination
legislation—the reasons why sex discrimination is a ‘bad thing’—are simply not
suitable for wholesale application to the field of age discrimination. They are
unsuitable precisely because the Age Discrimination Regulations are not aimed
simply at protecting a class of persons identified by a fixed/stable quality. These
considerations impact not merely on what ought to be capable of being a legiti-
mate aim, but also on the extent to which an employer ought to be permitted to
pursue any such aim and the measures he ought to be permitted to use for that
purpose.

Yet the ideas that underpin the well-established areas of anti-discrimination
legislation, that individuals should be treated on their own merits and that per-
sons in a like position ought to be treated alike, can go some way to inform the
proper approach to proportionality. These ideas encapsulate basic values of ‘fair
play’; they go a long way to give substance to the human rights justification for
preventing discrimination—that individuals should be treated with respect and
with dignity. In substance this would mean that the proportionate means crite-
rion under the Age Discrimination Regulations should require an employer to
convince a tribunal of the following. First, that treatment that has been afforded
to the claimant is rationally related to the aim he has identified. Secondly, that
he has not based the specific action taken against the claimant on uninformed
assumptions about the claimant which are based on the age of the claimant.
Thirdly, that he has taken reasonable steps to inform himself on all material con-
siderations prior to taking action against the claimant. Fourthly that the action
taken represents a reasonable balance between the employer’s pursuit of the aim

12 [2005] IRLR 862.

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actually pursued and the cost to the individual of that aim being pursued—i.e.
that the action taken against the claimant is not an obviously excessive step hav-
ing regard to the benefits that might reasonably be expected to accrue to the
employer. This range of considerations ought to achieve a number of objectives.
First it will prevent what is proportionate from including action that smacks of
stereotyping. Next, it ought to ensure that employers do not believe that, as a
matter of course they may adopt actions with severe consequences for particular
employees, when in fact those with less severe consequences would do. Finally, it
aims to create a position in which a Tribunal is entitled some power of control
over the factual merit of an employer’s decision-making, but does not become a
court of appeal of fact.

The approach proposed is not that far from the approach taken to justification
for the purposes of the Disability Discrimination Act.13 This is not to say that the
Disability Discrimination Act is a functional equivalent of the age discrimination
legislation; it is not.14 The potential for justification under the Age Discrimina-
tion Regulations ought to greater than that permitted under the Disability Dis-
crimination Act, if only because in most instances treatment that is to the
detriment of one age group (protected under the Regulations) is likely to work
to the advantage of another age group (also protected under the Regulations).
Going back to the analogy with the Human Rights Act, the situations under the
Regulations that are likely to call for serious consideration of the justification
defence are not ones akin to that where there has been merely an interference
with a qualified right that requires explanation and justification, rather they
more closely reflect situations where two competing rights exist,15 and where the
importance of one needs to be balanced off against the importance of the other.

13 See, for example, the decision in Post Office v Jones [2001] ICR 805. Following this decision lati-
tude is permitted to an employer on a justification defence under section 3A(1) of the Act. However,
for the purposes of disability discrimination, it is important to note that no similar latitude is permit-
ted in relation to the obligation to make reasonable adjustments (see Smith v Churchills Stairlifts plc
[2006] IRLR 41). This underlines the importance of the obligation to make reasonable adjustments
for the purposes of that legislative scheme. It is the obligation that makes clear what equality is
meant to mean in this area since it requires employers to take positive steps to enable the disabled to
‘compete’ on equal terms.

14 See, on this point, n 6 above, and the importance of the obligation to make reasonable adjust-
ments in providing the content of what equality means and requires in the area of disability
discrimination. Although under the Disability Discrimination Act some forms of direct discrimina-
tion can be justified (see section 3A(1)), ‘traditional’ direct discrimination cannot be justified (see
section 3A(4) and (5)). This point was made clear by the amendments made to the Disability Dis-
crimination Act in order properly to transpose the provisions of the Framework Directive. The
fact that the Age Discrimination Regulations (also derived from that Directive) provide for no
similar limitation is the clearest indication that in these two areas equality is not intended to be
treated identically.

15 For example, freedom of speech vs the rights of privacy.

September 2006 Justifying Age Discrimination

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In such situations a greater degree of latitude is required and permitted.16 None of
this suggests that issues of proportionate means are ones that are straightforward.
In practice the question of proportionality and the search for the grail of ‘fair
balance’ require us to compare and measure impacts, explanations and outcomes
that are essentially incommensurable. The overall question remains the same:
how much equality do we actually want; or more precisely how much inequality
are we prepared to tolerate. The answers must always be measured in specifics.17

6. CONCLUSION

In the scheme of the Age Discrimination Regulations the approach to what steps
are proportionate will be a crucial matter. Yet although it is necessary to deter-
mine the level of scrutiny to be applied to employer’s decisions—i.e. whether for
this purpose the role of the Tribunal should be closer to that of a gatekeeper or
that of the ringmaster—the most important issue, one that will inform everything
else, is what form of equality the Age Discrimination Regulations are meant to
achieve. The bete noir of the proponents of age discrimination legislation is the
‘fair innings’ argument—the contention that in the long term, and over the

16 What would be the practical effect of this on the example of the employer with the insurance
premium problem? First the tribunal would need to be satisfied that the refusal to pay was connected
to a legitimate aim (being the aim that the employer had actually been seeking to pursue). On this
example the aim would most likely be some form of economic one relating to the profitability of the
business. The next point would be for the employer to establish that there was a factual basis for his
assertion that the additional cost would actually be incurred—was it right that insurers generally did
charge higher premiums, or had the point simply been assumed without reasonable investigation of
what was possible. On this set of facts, the ‘balance question’ would be at the centre of the case: what
was the marginal cost to the employer; what was the benefit achieved by this cost saving; what would
be the consequence to the employer of obtaining the necessary insurance cover; how (objectively)
did the restriction on driving (until the age of 25) affect the employees concerned; how great was the
impact (either short term, or longer term) of the temporary restriction on driving on the jobs they
were employed to perform for that employer?

17 Another, more difficult example is this. What if an employer has a workforce which comprises a
predominantly older, white management group, and a more ethnically mixed (and larger) junior
group, and wants to redress the balance so that the composition of the management group reflects
the ethnic balance of the overall workforce. He believes that this is both the right thing to do as a
matter of principle, and that it will benefit his business by motivating junior employees to see a long
term future with the company. He tries to achieve this by two measures. First he introduces a com-
pulsory retirement age of 60 (for employees in all grades) knowing that this will increase the number
of management vacancies becoming available. Second he introduces a policy that prevents persons
aged over 50 applying for promotions. He hopes that this will encourage the younger staff to apply
for promotion, and succeed when they do. How is the proportionality of the measures adopted to be
determined? What specific considerations ought to influence or determine a Tribunal’s assessment of
the benefits for the employer? Should the weight to be attached to these be influenced by the sub-
stance of the aim that is actually being pursued? Should the possibility of marginal benefits in pursuit
of a ‘laudable’ aim count for the same as significant benefits in pursuit of an aim that is ‘less acceptable’?

Industrial Law Journal Volume 35

244

course of a lifetime, we all get a reasonably fair shake of the stick. On this ana-
lysis equality and fairness do not turn on a comparison on a snapshot of the
treatment of a 55-year-old against that afforded to a 35-year-old, but are content
in the knowledge that the 55-year-old was once 35-years-old. The Age Discrimi-
nation Regulations do not accept this argument as a governing principle: if they
did they would serve little practical purpose at all. But this conclusion alone is
not enough to guide the decisions that will have to be made from case to case. At
the other extreme, some of the statements contained in the Preamble to the
Directive ought to be read with a degree of caution.18 The limited nature of what
the operative provisions of the Directive, and the Regulations actually seek to
do, appears to rule out the use of either as an engine for wholesale social change.
If this is correct, perhaps the substantial form of equality that we should aim for
through the Age Discrimination Regulations is one that is rooted in consider-
ations of efficiency, and in human rights, requiring employers to respect the dig-
nity of their employees when taking decisions that affect them; requiring
employers to take decisions that are rational, reasoned and transparent; and pro-
hibiting mere stereotyping on grounds of age. This may seem too modest a pro-
posal, but those who seek more should really ask whether this Directive and
these Regulations are fit for the purpose.

How should the likely benefits to employees in one age group be weighed against the detriments for
those in the older age group? And what balance should be achieved between those matters and the
specific disadvantage to the 51-year-old who is now prevented from applying for promotion; or the 60
year old who is required to retire?

18 As with any preamble, the one for the Framework Directive contains the usual ‘pick and mix’
selection of statements that are apparently sensible, those that are Delphic, and others probably put
there on the basis of diplomatic compromise simply because they were too controversial to be put
anywhere near the operative provisions. This said, those paragraphs of the Preamble that refer spe-
cifically to age discrimination do seem to focus on first, economic considerations and second, the
social protection of older workers.

Who is Going to Protect the LGBTQ
Community from Discrimination—Congress or

the Courts?

K elsey D o r t o n *

A b st r a c t

Title VII o f the Civil Rights Act o f 1964 is supposed to provide equal
employment opportunities to all citizens o f the United States. However,
LGBTQ individuals face discrimination every day in the workplace, and
based on the current state o f the law, it is unclear whether discrimination
based on an individual’s “sexual orientation” or “gender identity” is
covered under “sex” in Title VII. This Article explores the term “sex” and
its various interpretations by Congress, the courts, and the various
states. Further, this Article explains why it is up to Congress, i f the
Supreme Court o f the United States reverses Zarda v. Altitude Express, to
pass legislation, such as the Equality Act, to protect the LGBTQ community.

A b s t r a c t ……………………………………………… 257
In t r o d u c t io n ………………………………………………………………………………………………258
I. T he LGBTQ C o m m u n it y a n d t h e Eq u a l it y Ac t …………………….. 260

A. Current State o f Affairs fo r the LGBTQ Community…………..260
B. The Equality A c t……………………………………………………………. 261
C. Related Legislation………………………………………………………… 263

1. The Fair and Equal Housing Act o f 2017 and the Fair and
Equal Housing Act o f2019……………………………………… 263

2. Freedom from Discrimination in Credit Act o f2017…….264
II. In t e r p r e t a t io n o f “Sex” ………………………………………………………. 265

A. How State Legislatures Have Handled “Sexual Orientation ” and
“Gender Identity ”……………………………………………………….. 265

‘The Author received her Bachelor of Arts degree from the University of Virginia’s College
at Wise. She received her Juris Doctorate, cum laude, from Campbell University School of
Law. She is currently serving as a judicial law clerk in the federal court system. Any views
or opinions expressed in this Article are attributable to the Author alone and do not reflect
the views of the federal court system. The Author would like to thank the team at Campbell
Law Review for their dedication and hard work on this Article.

257

258 Campbell Law Review [Vol. 42:257

B. Judicial Interpretations o f “Sex” ……………………………………. 265
1. Price Waterhouse v. Hopkins…………………………………….. 265
2. Oncale v. Sundowner Offshore Services, Inc……………….267
3. Smith v. City of Salem……………………………………………… 268
4. Hively v. Ivy Tech Community College of Indiana………270
5. Evans v. Georgia Regional Hospital…………………………… 272

III. Zarda v. Altitude Express, Inc.: A Possible Solution………….273
A. Simontonv. Runyon………………………………………………………. 274
B. Zarda v. Altitude Express, Inc…………………………………………..274
C. Implications o f the Upcoming Supreme Court Decision……..276

Conclusion………………………………………………………………………………..277

I n t r o d u c t io n

One of the puiposes of Title VII of the Civil Rights Act of 1964 is to
provide equal employment opportunities to citizens of the United States.1
Title VII prohibits employers from discriminating against an employee or
potential employee “because of such individual’s race, color, religion, sex,
or national origin.”2 But what happens when a transgender or homosexual
individual gets fired, is not hired, or is in some way demoted? Has this
individual been discriminated against because of “sex”? Based on the law
in its current state, are LGBTQ3 individuals protected? Currently, there is
no straightforward answer.

When discriminatory employment decisions are made because of an
individual’s sexual orientation or gender identity, issues arise because no
clear answer exists as to whether the term “sex” in Title VII of the Civil
Rights Act of 1964 includes “sexual orientation” or “gender identity.”
Courts have interpreted “sex” in a number of different ways and the federal
circuits are split as to whether “sex” includes discrimination based on one’s
sexual orientation or gender identity. The Equality Act was originally
introduced into the House of Representatives in 2017 to amend the Civil
Rights Act of 1964 “to include discrimination based on sexual orientation,

1. See Equal Employment Opportunities Act, 42 U.S.C. §§ 2000e-2000e-17 *2012).
2. 42 U.S.C. § 2000e-2(a).
3. LGBTQ is the most commonly used acronym to reference the lesbian, gay, bisexual,

transgender, queer or questioning community. What Does LGBTQ+ Mean?, OK2BME,
https://perma.cc/9DVK-UJLA. Often, the acronym is followed by a plus (+) symbol to
encompass all of the communities that could fall under the acronym. Id. According to the
OK2BME Project, following the acronym with a plus encompasses the following: lesbian,
gay, bisexual, transgender, transsexual, two-spirit, queer, questioning, intersex, asexual, ally,
pansexual, agender, gender queer, bigender, gender variant, and pangender. Id.

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f r o m D is c r im in a t io n

gender identity, and sex stereotypes,” but Congress has not yet passed this
law.4 5 The various court decisions, coupled with the fact that the Equality
Act is still in its beginning stages, leaves the solution for assessing
discrimination disputes up for debate. The prevalent question is whether
the courts should take it upon themselves to interpret “sex” to protect
LGBTQ individuals, or if it is the job of the legislature to affect widespread
change through the passage of the Equality Act or some similar piece of
legislation.

Discrimination against LGBTQ individuals occurs often and in
numerous different contexts. Although employment discrimination is often
the focus of litigation, LGBTQ individuals face discrimination in both
housing and educational contexts as well. For example, according to the
National Center for Transgender Equality, “[o]ne in five transgender people
in the United States has been discriminated when seeking a home, and more
than one in ten have been evicted from their homes, because of their gender
identity.’” Title IX,6 which prohibits discrimination on the “basis of sex”
in education, and the Fair Housing Act,7 which similarly prohibits
discrimination based on “sex” in the housing context, have language similar
to Title VII.8 The same issues arise regarding the interpretation of “sex” in
these contexts as well.

There is currently a split of authority on how to interpret “sex,” mostly
in the context of Title VII. Some courts have ruled that “sex” includes
“gender identity” and “sexual orientation,” while others have ruled that
“sex” means only one’s biological identity.9 Because “gender identity” and
“sexual orientation” are not explicitly stated in the language of these
statutes, it is up to the courts to interpret “sex” in a manner that includes
“gender identity” and “sexual orientation” in order to provide protection for
the LGBTQ community.

4. Equality Act, H.R. 2282, 115th Cong. (2017).
5. Housing & Homelessness, Nat’l Ctr. for Transgender Equality,

https://perma.cc/AL5D-BGGZ.
6. 20 U.S.C. § 1681(a) (2012).
7. 42 U.S.C. § 3604(a) (2012).
8. See 42 U.S.C. § 2000e-2(a).
9. Compare Hively v. Ivy Tech Cmty. Coll, of Ind., 853 F.3d 339, 351-52 (7th Cir.

2017) (sexual orientation), and Smith v. City of Salem, 378 F.3d 566, 567-68 (6th Cir. 2004)
(gender identity), with Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017)
(“[T]here is no sexual orientation action under Title VII.”), and Simonton v. Runyon, 232
F.3d 33, 34 (2d Cir. 2000) (“.. . Title VII does not prohibit discrimination based on sexual
orientation.”), overruled by Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018).

260 C a m p b e l l La w R ev iew [Vol. 42:257

Part I of this Article will describe the current culture surrounding the
LGBTQ community and provide a more in-depth look at the Equality Act,
as well as related proposed legislation that would amend language in the
Civil Rights Act of 1964.10 Part II will explore how state legislatures have
handled discrimination based on “sexual orientation” and “gender identity,”
as well as the various federal court decisions interpreting “sex.” Part III
will discuss Zarda v. Altitude Express, Inc.11 and the recent oral argument
before the Supreme Court combining Zarda with Bostock v. Clayton
County, Georgia, u including the potential ramifications of the Court’s
decision once it is rendered.

I. T he L G B T Q C o m m u n it y a n d t h e Eq u a l it y A c t

A. Current State o f Affairs for the LGBTQ Community

The issues faced by the LGBTQ community have been especially
prevalent in media outlets, specifically since current President Donald
Trump began his presidential election campaign in 2016. For example, in
July of 2017, President Trump, in a series of tweets on his personal Twitter
page, banned transgender individuals from serving “in any capacity in the
U.S. Military.”* 11 Another example that also deals with LGBTQ
employment discrimination is highlighted in a recent USA Today article—
in which Officer Jay Brome describes the harassment and discrimination he
has faced as a gay man with the California Highway Patrol.14 Yet another
recent controversy with regard to the LGBTQ community occurred when
leaders of the United Methodist Church (“UMC”) voted and made the
decision to “tighten its ban on gay clergy and same-sex marriage and to
increase the punishment for violations.”15 In an article by the Los Angeles
Times, Tim Baulder, a gay man, discussed his journey to the UMC where

10. See 20 U.S.C. § 1681(a) (2012); 42 U.S.C. §§ 2000e-2(a), 3604(a); Equality Act,
H.R. 2282, 115th Cong. (2017); Equality Act, S. 1006, 115th Cong. (2017); Fair and Equal
Housing Act of 2017, H.R. 1447, 115th Cong. (2017); Freedom from Discrimination in
Credit Act of 2017, H.R. 2498, 115th Cong. (2017).

11. Zarda, 883 F.3d 100.
12. See Transcript of Oral Argument, Altitude Express, Inc. v. Zarda, 132 S. Ct. 1599

(2019) (Nos. 17-1618 and 17-1623).
13. Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 9:04 AM),

https://perma.cc/7C5Q-A8E2.
14. Kristin Lam, LGBT Police Officers Say They’ve Faced Horrible Discrimination,

and Now They’re Suing, USAToday (Feb. 10, 2019), https://perma.ee/666A-EWAN.
15. Hailey Branson-Potts, As United Methodist Leaders Tighten LGBTQ Ban, Churches

Struggle with Path Forward, L.A.T imes (Mar. 19, 2019), https://perma.cc/69ZD-3GB5.

2612020] Who is Going to Protect the LGBTQ Community
from Discrimination

he became a lead usher at Hollywood UMC.16 After UMC policy-makers
decided to further distance themselves from the LGBTQ community,
Baulder, along with many others, now feels betrayed by the church he once
called home.17 According to National Public Radio (“NPR”), the UMC has
proposed a split in the church which will be voted on at the UMC’s
upcoming general conference.18 If this proposal were to pass, “it would
allow for a ‘traditionalist’ denomination to separate from the United
Methodist Church.”19

The spotlight on the LGBTQ community continues, but the focus,
however, is often not on the discrimination faced in the workplace and thus
this form of discrimination may not seem prevalent to some. According to
the National Center for Transgender Equality, “[m]ore than one in four
transgender people have lost a job due to bias, and more than three-fourths
have experienced some form of workplace discrimination.”20 In response
to such instances of discrimination, members of Congress have proposed
certain bills in hopes of ending this discrimination.

B. The Equality Act

Rhode Island Representative David Cicilline introduced a version of a
bill called “the Equality Act” into the House of Representatives while
Oregon Senator Jeff Merkley introduced a version of the Equality Act into
the Senate on May 2,2017.21 The purpose of the Equality Act is to add both
“sexual orientation” and “gender identity” to the protected categories under
the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit
Opportunity Act, and jury selection standards.22 Senator Jeff Merkley
worked with Senator Cory Booker and Senator Tammy Baldwin to
introduce the Equality Act.23 In a press release regarding the Equality Act,
Senator Booker stated:

16. Id.
17. Id.
18. Meg Anderson, United Methodist Church Announces Proposal to Split Over Gav

Marriage, NPR (Jan. 4, 2020), https://penna.cc/3WB7-WEZV.
19. Id.
20. Employment, Nat’l Ctr. for Transgender Equality https://perma.ee/8RD8-

VSLY (last visited March 21,2020).
21. Equality Act, H.R. 2282, 115th Cong. (2017); Equality Act, S. 1006, 115th Cong.

(2017).
22. See H.R. 2282.
23. Press Release, Cory Booker, Senator, United States Senate, Booker, Merkley,

Baldwin Introduce Historic, Comprehensive LGBTNon-Discrimination Bill (May 2, 2017),
https://penna.ee/L9UQ-54JJ.

262 C a m p b e l l L a w R ev iew [Vol. 42:257

The Equality Act builds on the work of those who have struggled and
fought for LGBT rights by extending basic civil rights protections that must
be guaranteed to every American . . . . We must never stop fighting . . . for
those who endure discrimination because of their gender identity or sexual
orientation.24

This bill would provide protection to LGBTQ individuals in numerous
areas and such protection is certainly needed given how prevalent
discrimination is.25 The Human Rights Campaign, in a blog post on the
Equality Act, stated that “nearly two-thirds of LGBTQ Americans report
having experienced discrimination in their personal lives.”26 In the House,
the latest action taken was a referral of the Equality Act to the House
Judiciary Subcommittee on the Constitution and Civil Justice.27 In the
Senate, the latest action taken was a referral of the Equality Act to the Senate
Judiciary Committee.28 At the end of the 115th Congress, the version of the
Equality Act in the House had 201 sponsors, with the latest joining in
December of 2018.29 At the end of the 115th Congress, the version of the
Equality Act in the Senate had forty-seven sponsors, with the latest joining
in April of 2018.30

The Equality Act was reintroduced by Representative David Cicilline
in the 116th Congress on March 13, 2019.31 This version of the bill
currently has 240 sponsors and was passed in the House of Representatives
on May 17, 2019.32 The bill passed with a vote of 236-173.33 On May 20,
2019, the bill was read in the Senate and then referred to the Committee on
the Judiciary, and this is the latest action taken with regard to the Equality
Act.34 If the Equality Act were to become law, it would encompass both

24. Id.
25. See The Equality Act, Hum. Rts. Campaign (Dec. 21, 2018),

https://penna.cc/BZ6L-5VXY. “The Equality Act would provide consistent and explicit
non-discrimination protections for LGBTQ people across key areas of life, including
employment, housing, credit, education, public spaces and services, federally funded
programs, and jury service.” Id.

26. Id.
27. Committees: H.R. 2282-Equality Act, Congress.GOV, https://perma.cc/UTD2-

DJL7.
28. Committees: S. 1006-Equality Act, Congress.gov, https://pcrma.ee/9GML-

MNZW.
29. Cosponsors: H.R. 2282-Equality Act, Congress.GOV, https://perma.cc/D3K.U-

QCUS.
30. Cosponsors: S. 1006-Equality Act, CONGRESS.GOV, https://perma.cc/C9NV-N9X2.
31. Text: H.R. 5-Equality Act, Congress.GOV, https://penna.cc/LC9F6TJ5.
32. Cosponsors: H.R. 5-Equality Act, CONGRESS.GOV, https://perma.cc/HE3J-SYNF.
33. All Actions: H.R. 5-Equality Act, Congress.GOV, https://perma.cc/8K7B-5UZG.
34. Id.

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the changes proposed in the Fair and Equal Housing Act as well as the
Freedom from Discrimination in Credit Act.35

C. Related Legislation

The Equality Act is a more comprehensive piece of legislation than
either the Fair and Equal Housing Act or the Freedom from Discrimination
in Credit Act. However, if the Equality Act fails, a related piece of
legislation could still provide a step in the right direction. The Fair and
Equal Housing Act was reintroduced in the 116th Congress on April 30,
2019, and the Freedom from Discrimination in Credit Act has not been
reintroduced.36 Even without the reintroduction of this bill, it is helpful to
examine and see how members of Congress are attempting to make
changes, even if it is not in the same wide-ranging manner as the Equality
Act.

1. The Fair and Equal Housing Act o f 2017 and the Fair and Equal
Housing Act o f 2019

Virginia Representative Scott Taylor introduced the Fair and Equal
Housing Act of 2017 into the United States House of Representatives on
March 9, 2017.37 The purpose of this bill was to add both “sexual
orientation” and “gender identity” to the language of the Fair Housing Act
and to extend protections of the Act to “persons suffering discrimination on
the basis of sex or sexual orientation, and for other purposes.”38 According
to the Human Rights Campaign, approximately twenty-five percent of
transgender individuals have reported some type of discrimination with
regard to housing.39 At the close of the 115th Congress, the Fair and Equal
Housing Act of 2017 had been referred to the House Judiciary
Subcommittee on the Constitution and Civil Justice.40 The bill had 104
sponsors with the latest joining in October of 2018.41

35. See Text: H.R. 5-Equality Act, supra note 31.
36. All Actions: H.R. 2402-Fair and Equal Housing Act o f 2019, C o ng ress .GOV,

https://perma.cc/QEB7-6UBM.
37. Fair and Equal Housing Act of 2017, H.R. 1447, 115th Cong. (2017).
38. Id.
39. Jennifer Pike Bailey, Fair and Equal Housing Act Introduced in Congress, Hum.

Rts. Campaign (Mar. 9, 2017), https://perma.cc/Q72R-6WEW.
40. Committees: H.R. 1447-Fair and Equal Housing Act o f 2017, Congress.Gov,

https://perma.cc/4TST-ZG2 E.
41. Cosponsors: H.R. 1447-Fair and Equal Housing Act o f 2017, Congress.Gov,

https://perma.cc/F6PX-WK8Q.

264 C a m p b e l l La w R ev iew [Vol. 42:257

On April 30,2019, Virginia Senator Tim Kaine introduced the Fair and
Equal Housing Act of 2019.42 This bill was referred to the Committee on
the Judiciary after its introduction in the Senate.43 The bill has twenty-four
sponsors in the Senate with the latest joining in January of 2020.44 Also on
April 30, 2019, Illinois Representative Brad Schneider introduced the Fair
and Equal Housing Act of 2019 in the House of Representatives.45 The bill
was referred to the Committee on the Judiciary, which then referred the bill
to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties
on May 20, 2019.46 The bill currently has forty-nine sponsors in the House
with the latest joining in January of 2020.47

2. Freedom from Discrimination in Credit Act o f 2017

New Jersey Representative Josh Gottheimer introduced the Freedom
from Discrimination in Credit Act of 2017 on May 17, 2017.48 Its purpose
was to add “sexual orientation” and “gender identity” to the protected
categories of the Equal Credit Opportunity Act.49 At the close of the 115th
Congress, this bill had been referred to the House Committee on Financial
Services.50 The Freedom from Discrimination in Credit Act of 2017 had
eighty-seven sponsors with the latest joining in December of 2018.51

Although the Freedom from Discrimination Act has not been
reintroduced and the Fair and Equal Housing Act of 2019 has not made
significant progress, the passing of the Equality Act, which has been
reintroduced and has passed in the House, would encompass both the
provisions of the Fair and Equal Housing Act and the Freedom from
Discrimination in Credit Act.

42. Fair and Equal Housing Act of 2019, S. 1246., 116th Cong. (2019).
43. All Actions: S. 1246-Fair and Equal Housing Act o f 2019, Conoress.Gov,

https://perma.cc/V8VC-DAA6.
44. Cosponsors: S. 1246-Fair and Equal Housing Act o f 2019, Congress.Gov,

https://perma.cc/X86W-LB7C.
45. Fair and Equal Housing Act of 2019, H.R. 2402, 116th Cong. (2019).
46. All Actions: H.R. 2402, supra note 36.
47. Cosponsors: H.R. 2402-Fair and Equal Housing Act o f 2019, Congress.Gov,

https://perma.cc/7XPV-K.MDU.
48. Freedom from Discrimination in Credit Act of 2017, H.R. 2498,115th Cong. (2017).
49. Id. The purpose of the Equal Credit Opportunity Act is to keep creditors from

discriminating against credit applicants based on certain protected categories. The Equal
Credit Opportunity Act, U.S. Dep’t Just. (Nov. 8, 2017), https://perma.cc/ZNY3-A9CD.

50. Committees: H.R. 2498-Freedom from Discrimination in Credit Act o f 2017,
Congress.Gov, https://perma.cc/4VFP-5DGY.

51. Cosponsors: H.R. 2498-Freedom from Discrimination in Credit Act o f 2017,
Congress.Gov, https://perma.cc/M6UF-FPPR.

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from Discrimination

II. Interpretation of “Sex”

A. How State Legislatures Have Handled “Sexual Orientation” and
“Gender Identity ”

State legislatures across the country have made the decision to add
“gender identity” and “sexual orientation” to their nondiscrimination laws.
According to the Movement Advancement Project, twenty-one states, in
addition to the District of Columbia, have included “sexual orientation” and
“gender identity” as protected classes in their laws.52 In addition to the
states that include “gender identity” and “sexual orientation” in their laws,
Michigan and Pennsylvania have interpreted their current laws prohibiting
“sex discrimination” to include “sexual orientation and/or gender
identity.”53 Wisconsin has laws that prohibit discrimination based on
“sexual orientation,” but “gender identity” is not included.54 The number
of states that have adopted protective language into their laws showcases a
promising trend in the direction of providing equal opportunities to the
LGBTQ community.

B. Judicial Interpretations o f “Sex”

This section examines two Supreme Court and four circuit court of
appeals cases interpreting “sex.” Each case adds something unique to the
developing views on how to interpret “sex” in workplace discrimination
suits. The exploration of the interpretation of “sex” in this section shows
how federal courts went from interpreting “sex” to mean only biological sex
to including sex stereotyping under the umbrella of “sex” discrimination.

1. Price Waterhouse v. Hopkins

In Price Waterhouse v. Hopkins, the United States Supreme Court
examined the manner in which sex stereotyping plays into discrimination
based on “sex.”55 Ann Hopkins was a senior manager for Price Waterhouse,
a nationwide professional accounting partnership, and the only woman out

52. Non-Discrimination Laws, Movement Advancement Project,
https://perma.cc/8Z5J-3LFC. The states which include these classes as protected ones are:
Washington, Oregon, California, Nevada, Hawaii, Utah, Colorado, New Mexico, Minnesota,
Iowa, Illinois, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts,
New York, Vennont, New Hampshire, and Maine. Id.

53. Id.
54. Id.
55. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

266 C a m p b e l l L a w R ev iew [Vol. 42:257

of the eighty-eight individuals proposed for partnership in 1982.56 Out of
the 662 individuals who were partners at Price Waterhouse, only seven were
women.57 Hopkins was considered, but subsequently denied partnership.58
She believed she was denied partnership because she was a woman.5’’ Based
on her work ethic and success with closing large contracts for Price
Waterhouse, and thus making the company a great deal of money, Hopkins
believed there was no other logical reason.60 Therefore, she brought an
action under Title VII arguing that she was discriminated against based on
“sex.”61

The United States District Court for the District of Columbia held that
“Price Waterhouse had unlawfully discriminated against Hopkins on the
basis of sex by consciously giving credence and effect to partners’
comments that resulted from sex stereotyping.”62 The United States Court
of Appeals for the District of Columbia Circuit agreed that Price
Waterhouse had discriminated against Hopkins because of her sex, and the
case went to the Supreme Court on an issue of burden of proof as the district
court and the court of appeals differed on their decision with regard to that
issue.63 When it decided to grant certiorari in this case, the Court began its
evolution of the interpretation of “sex.”64

In the majority opinion, the Court described a number of instances
where male partners at Price Waterhouse made stereotypical comments
about Hopkins being a woman.65 For example, one partner stated that
Hopkins used curse words and was not ladylike, while another partner stated
that she “should ‘walk more femininely, talk more femininely, dress more

56. Id. at 231-33.
57. Id. at 233.
58. Id. at 231-32.
59. Id. at 232.
60. See id. at 233-34. Hopkins was hailed as putting forth an “outstanding

performance” when she secured a $25 million contract for the firm. Id. at 233.
61. Id. at 232.
62. Id. at 237.
63. Id. (“Linder [the Court of Appeals’] approach, an employer is not deemed to have

violated Title Vll if it proves that it would have made the same decision in the absence of an
impermissible motive, whereas, under the District Court’s approach, the employer’s proof
in that respect only avoids equitable relief.”). With regard to the burden issue, the Supreme
Court held:
[OJnce a plaintiff in a Title VII case shows that gender played a motivating part in an
employment decision, the defendant may avoid a finding of liability only by proving that it
would have made the same decision even if it had not allowed gender to play such a role.
Id. at 244^15.

64. Id. at 250.
65. Id.ti.215.

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femininely, wear make-up, have her hair styled, and wear jewelry.’”66
When the Court examined sex stereotyping under Title VII, it stated that
“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.”67 The
Court often used the terms “gender” and “sex” interchangeably in this
opinion.68

Price Waterhouse v. Hopkins shows the beginnings of the evolution of
“sex” interpretation. After the Supreme Court’s decision in Price
Waterhouse, “sex” no longer meant only biological identification, the tenn
“sex” grew to mean that discriminating based on stereotypes or
generalizations about an individual’s gender also falls under the term “sex.”
Thus discrimination based on a failure to meet certain sex stereotypes, like
Hopkins, is unlawful.69

2. Oncale v. Sundowner Offshore Services, Inc.

Oncale v. Sundowner Offshore Services, Inc. presented the Supreme
Court of the United States with the issue of whether harassment by a same-
sex co-worker violated Title VII’s prohibition against discrimination based
on “sex.”70 Joseph Oncale, while working at Sundowner Offshore Services,
was forced to endure “sex-related” actions on more than one occasion and
was often referred to by derogatory terms—intended to identify him as a
gay man—by his coworkers.71 Oncale was also the victim of physical
assault and was threatened with rape by a male co-worker.72 The United
States District Court for the Eastern District of Louisiana ruled that because
Oncale was a male, he had no cause of action against members of the same
sex under Title VII.77 The United States Court of Appeals for the Fifth
Circuit, based on the same reasoning and circuit precedent, affirmed the
decision of the lower court.74

66. Id.
67. M a t250.
68. See id.
69. See id. at 258 (stating that the Court “sit[s] not to determine whether Ms. Hopkins

is nice, but to decide whether the partners reacted negatively to her personality because she
is a woman.”).

70. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 76 (1998).
71. Id. at 77.
72. Id.
73. Id.
74. Id. Both the District Court and the Court of Appeals relied on the Fifth Circuit’s

decision in Garcia v. Elf Atochem North America. Id. In Garcia, the Fifth Circuit held that

268 C a m p b e l l La w R ev iew [Vol. 42:257

The Supreme Court of the United States reversed the lower courts and
held that “sex” protects both men and women: “[W]e hold today that
nothing in Title VII necessarily bars a claim of discrimination ‘because
o f . . . sex’ merely because the plaintiff and the defendant. . . are of the
same sex.”75 The Oncale case demonstrated an evolution in “sex”
interpretation. In the past, “sex” was interpreted to mean discrimination
against only those of the opposite sex, but this case solidified that “sex”
applies to discrimination against those of the same sex as well.76

3. Smith v. City of Salem

Smith presented the United States Court of Appeals for the Sixth
Circuit with the issue of whether an individual who has been diagnosed with
Gender Identity Disorder77 and who has begun to conform to his or her
gender identity rather than biological identity is protected from
discrimination based on “sex.”78 Smith worked for several years as a
lieutenant at a fire department in Salem, Ohio, and Smith identified as a
“transsexual.”79 After Smith was diagnosed with Gender Identity Disorder,
Smith began conforming with the recommended treatment, including
beginning to act in a more feminine manner as he gradually transitioned
from male to female.80

Once this process started to take place, Smith began overhearing
remarks that he was too feminine and received inquiries from coworkers
about why he was not acting more masculine.81 In response to these
comments, Smith went to his superior, Thomas Eastek, to inform him of his

harassment by a male against another male is not sexual harassment and therefore is not
protected under Title VII. Garcia v. Elf Atochem N. Am., 28 F.3d 446, 452 (5th Cir. 1994).

75. Oncale, 523 U.S. at 79 (first set of ellipses in original).
76. Id. “When the Oncale decision was announced in 1998, it was widely praised for

sending a message that ‘male or female, gay or straight, nobody should have to face sexual
harassment when they go to work in the morning.”’ Jonathan Gartner, Looking Back at
Justice Scalia’s Decision in Oncale: “because o f… sex,” OnLabor (May 18, 2016),
https://perma.cc/KAN5-F9XJ.

77. Gender Identity Disorder is no longer a recognized diagnosis and has been changed
to gender incongruence. Sophie Lewis, World Health Organization Removes “Gender
Identity Disorder” from List o f Mental Illnesses, CBS News (May 29, 2019),
https://perma.cc/VJ4V-BV6J. “Gender incongruence is better known as gender dysphoria,
the feeling of distress when an individual’s gender identity is at odds with the gender
assigned at birth.” Id.

78. Smith v. City of Salem, 378 F.3d 566, 567-68 (6th Cir. 2004).
79. Id. at 568.
80. Id.
81. Id.

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transition from male to female and of the conflict with his coworkers.82

Smith asked Eastek to keep their conversation private; however, Eastek
disclosed the information to the Fire Department Chief, Walter
Greenamyer.83 Greenamyer then went to the City of Salem’s executive
body “with the intention of using Smith’s transsexualism and its
manifestations as a basis for terminating his employment.” 84 The executive
body came up with a plan to ultimately terminate Smith.85 The Equal
Employment Opportunity Commission (“EEOC”) granted Smith
permission to initiate proceedings against the City for its actions.86 The City
ultimately suspended Smith from his job .87

The United States District Court for the Northern District of Ohio
dismissed Smith’s sex discrimination claims, stating that Smith failed to
properly state a claim for “sex” stereotyping, and Smith appealed to the
United States Court of Appeals for the Sixth Circuit.88 The Sixth Circuit
considered Smith’s allegations that he was discriminated against based on
the fact that he did not conform to the “sex stereotypes of how a man should
look and behave” when he began dressing and conducting himself in a more
feminine way.89 The court agreed with Smith and found that the
proceedings to terminate him began after he started to take on a more
feminine appearance at work and after Smith’s conversation with Eastek
about the diagnosis of Gender Identity Disorder and plans to transition fully
to a female.90 The court ultimately determined that because Smith “alleged
that his failure to conform to sex stereotypes concerning how a man should
look and behave was the driving force behind Defendants’ actions, Smith
ha[d] sufficiently pleaded claims of sex stereotyping and gender
discrimination.” 91

Although this case is only binding in the Sixth Circuit, the reasoning
set forth by the court provides guidance as well as persuasion for other
circuits. This case is important for interpreting “sex” to include “gender

82. Id.
83. Id.
84. Id.
85. Id. at 569. As a part of the plan to terminate Smith, the committee planned to require

that Smith undertake a number of psychological evaluations in hopes that Smith would not
accept this, thereby allowing the City to terminate him for “insubordination.” Id.

86. Id.
87. Id.
88. Id.
89. Id. at 572.
90. Id.
91. Id.

270 C a m p b e l l L a w R e v ie w [Vol. 42:257

identity” and “sexual orientation” because it solidifies that “sex” includes
not only biological male and female constructs, but also gender
discrimination.92 Thus, a strong argument exists that discrimination based
on “sexual orientation” or “gender identity” is based on a failure of such
individuals to meet the stereotypes of mainstream society and is thus
unlawful based on the term “sex” in the language of Title VII.

4. Hively v. Ivy Tech Community College of Indiana

The United States Court of Appeals for the Seventh Circuit in Hively
v. Ivy Tech Community College o f Indiana was faced with the question of
whether “sex” discrimination included discrimination based on an
individual’s “sexual orientation.”93 Kimberly Hively, an “openly lesbian”
individual, was a part-time professor at Ivy Tech Community College.94
She started working at Ivy Tech in 2000, and between the years 2009 and
2014 she applied for a number of different full-time positions and was
denied each time.95 Ms. Hively fded a charge with the EEOC, was granted
a right to sue letter, and fded her action in the district court.96 The district
court dismissed her action for failure to state a claim and Hively appealed.97
Because the United States Supreme Court had yet to speak on this specific
question, the United States Court of Appeals for the Seventh Circuit made
the decision to take a “fresh look at our position in light of developments at
the Supreme Court.”98 The circuit court stated that the operative question
in this case was “whether actions taken on the basis of sexual orientation
arc a subset of actions taken on the basis of sex.”99

The Seventh Circuit dismissed the idea that legislative history is
necessarily controlling in interpreting the language of a statute.100
Referencing Oncale, the court stated “the fact that the enacting Congress
may not have anticipated a particular application of the law cannot stand in
the way of the provisions of the law that are on the books.”101 The court
ultimately held that “sexual orientation” is included under “sex” in Title

92. Gender discrimination: “discrimination based on a failure to conform to
stereotypical gender norms.” Id. at 573.

93. Hively v. Ivy Tech Cmty. Coll, oflnd., 853 F.3d 339, 340-41 (7th Cir. 2017).
94. Id. at 341.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id. at 343.

100. Id. at 343-44.
101. Id. at 345.

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VII.102 In so holding, the court based its decision on the direction in which
Supreme Court decisions have been heading with regard to sexual
orientation:103

The logic of the Supreme Court’s decisions, as well as the common-
sense reality that it is actually impossible to discriminate on the basis of
sexual orientation without discriminating on the basis of sex, persuade us
that the time has come to overrule our previous cases that have endeavored
to find and observe that line.104

In a concurring opinion in Hively, Judge Posner proposed adopting the
statutory interpretation method of judicial inteipretive updating.105 This
method refers to interpreting a law to “satisfy modem needs and
understandings” despite what the ‘“original meaning’” might be.106 Judge
Posner stated that “today ‘sex’ has a broader meaning than the genitalia
you’re bom with.”107

Judge Posner’s proposal has been met with some criticism by statutory
originalists. Josh Blackman, a law professor who specializes in
constitutional law, is an example of someone on the other end of the
interpretation spectrum from Posner.108 In his blog posts, Professor
Blackman discussed instances where judges have used modem definitions
to inteipret “sex,” but he stated that with regard to statutory originalism,
“[s]uch latter-day definitions are irrelevant.”109 To support the irrelevance
of modem definitions to statutory interpretation, Blackman discussed the
views of the late Justice Scalia, which essentially rejected dependence on
definitions in dictionaries that were not even thought of at the time a statute
was drafted.110

102. Id. at 351-52.
103. M a t 349.
104. M a t 350-51.
105. Id. at 352 (Posner, J., concurring).
106. Id.
107. Id. at 354.
108. About Josh, Josh Blackman’s Blog, https://penna.cc/X7TX-22T6.
109. Josh Blackman, Statutory Originalism, Josh Blackman’s Blog (Feb. 26, 2017),

https://perma.cc/K9NH-WN5R.
110. Id.’,seealso Josh Blackman, Judge Posner’s “Judicial Interpretive Updating,” Josh

Blackman’s Blog (Apr. 5, 2017), https://perma.ee/9648-PXR9 (“Nonsense is an apt way
to describe Posner’s opinion.”).

272 C a m p b e l l L a w R ev iew [Vol. 42:257

5. Evans v. Georgia Regional Hospital

Evans v. Georgia Regional Hospital presented to the United States
Court of Appeals for the Eleventh Circuit the familiar issue of whether
discrimination based on “sexual orientation” is covered under Title V II.”1
Jameka Evans filed suit against her employer alleging that she had faced
discrimination based on the fact that she was homosexual and also because
she did not conform to gender stereotypes.112 Evans worked as a security
officer at Georgia Regional Hospital for over a year before she left the
position on her own free will.113 Evans contended that she did not receive
equal pay and that she was assaulted and harassed because of her sexual
orientation during her employment.114 Evans described a “hostile work
environment” and stated that because she did not dress nor carry herself like
a stereotypical female, she was discriminated against.115 A magistrate judge
in the United States District Court for the Southern District of Georgia
issued a report and recommendation which “reasoned that—based on case
law from all circuits that had addressed the issue—Title VII ‘was not
intended to cover discrimination against homosexuals.’”116 The magistrate
judge further reasoned that “Evans’s claim of discrimination based on
gender non-conformity . . . was ‘just another way to claim discrimination
based on sexual orientation.’”117 Evans appealed the magistrate judge’s
report and recommendation, and the district court, after conducting a de
novo review, adopted the report.118

The Eleventh Circuit agreed that “[discrimination based on failure to
conform to a gender stereotype is sex-based discrimination,” and stated that
in previous cases it had specifically held that “gender-nonconformity was
sex discrimination.”119 Thus, the Eleventh Circuit ruled that the district
court erred on this specific issue.120 However, on the issue of whether
discrimination based on sexual orientation is itself actionable under Title
VII, the court ruled it was not.121 The Eleventh Circuit refused to re­
evaluate prior precedent which ruled that “sexual orientation”

111. Evans v. Ga. Reg’! Hosp., 850 F.3d 1248, 1250 (11th Cir. 2017).
112. Id.
113. Id. at 1251.
114. Id.
115. Id.
116. Id. at 1252 (quoting the magistrate court).
117. Id. (quoting the magistrate court).
118. Id. at 1253.
119. Id. at 1254.
120. Id. at 1254-55.
121. Id. at 1255.

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discrimination is not “sex” discrimination. 122 The court dismissed the
argument that because “gender non-conformity and same-sex
discrimination” are actionable under Title VII, sexual orientation
discrimination is as well. 123 Because the Supreme Court had not specifically
addressed the issue of “sexual orientation” discrimination with regard to
Title VII, the court refused to depart from precedent. 124

Unlike the previously discussed circuit court decisions, Evans shows
the other side of the spectrum when it comes to interpreting “sex” to include
“sexual orientation” and “gender identity.” The Eleventh Circuit ultimately
determined that because the Supreme Court had not taken up the specific
issue involved in this case, it should just rely on precedent and leave
LGBTQ individuals unprotected. 125 This reflects the question at the center
of the current circuit split: Does workplace discrimination based on “sex”
encompass discrimination based on “sexual orientation” and “gender
identity”?

III. Zarda v. Altitude Express, Inc.: A Possible Solution

The tension between circuits may soon be alleviated by Zarda v.
Altitude Express, which was combined with Bostock v. Clayton for oral
argument in front of the Supreme Court of the United States. 126 The
evolution of Zarda and its precedent in the United States Court of Appeals
for the Second Circuit also reflects the judicial trend towards a more
encompassing definition of “sex.”

122. Id.: see Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (stating that
“[d]ischarge for homosexuality is not prohibited by Title VII”). The Eleventh Circuit in
Evans further disagreed with the argument that Price Waterhouse and Oncale supported a
cause of action for discrimination based on “sexual orientation,” stating, “The fact that
claims for gender non-conformity and same-sex discrimination can be brought pursuant to
Title VII does not permit us to depart from Blum.” Evans, 850 F.3d at 1256.

123. Evans, 850 F.3d at 1256.
124. Id. at 1257.
125. The Evans decision was referenced as precedent and reaffirmed by the Eleventh

Circuit in Bostock v. Clayton Cty. Bd. o f Comm ‘rs, 723 Fed. App’x 964 (11th Cir. 2018),
cert, granted, 139 S. Ct. 1599 (2019). The Eleventh Circuit agreed that Title VII does not
cover discrimination based on sexual orientation. Id. at 964-65. This court made reference
to the possibility of overturning Evans if it were sitting en banc. Id. at 965. However, a
judge of this court asked for a poll to be taken on whether the case should be heard en banc
and a majority of the court voted no. Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d
1335, 1335 (11th Cir. 2018).

126. Bostock v. Clayton County, Georgia, SCOTUSblog, https://perma.cc/42VZ-56NJ.

274 C a m p b e l l L a w R e v ie w [Vol. 42:257

A. Simonton v. Runyon

Prior to Zarda, Simonton v. Runyon was precedent with regard to
discrimination based on “sexual orientation” in the Second Circuit.1’7 In
Simonton, the Second Circuit considered whether Title VII prohibited
discrimination based on “sexual orientation.”128 Dwayne Simonton, a
postal service worker whose sexual orientation was known at his place of
employment, was subjected to humiliating remarks at work.129 Co-workers
also placed graphic materials around his locker and work space.130 Because
of this harassment, Simonton fded suit arguing that he “suffered by reason
of his sexual orientation.”131 The United States District Court for the
Eastern District of New York dismissed the case on the grounds that
Simonton had not stated a cognizable claim because Title VII “docs not
prohibit discrimination based on sexual orientation.”132 The Second Circuit
condemned the abuse Simonton had endured, but ultimately agreed with the
district court and held “sex” does not include “sexual orientation.”133 In
February of 2018, the Second Circuit, sitting en banc, overruled its prior
precedent Simonton v. Runyon.134

B. Zarda v. Altitude Express, Inc.

Donald Zarda worked as a skydiving instructor and, as an essential part
of his job, he was required to be in “close physical proximity” to clients
when performing dives.135 The incident which lead to this case occurred
when Zarda told one of his clients that he was gay in an attempt to make her
more comfortable.136 Instead, the client accused Zarda of touching her in a
way that made her uncomfortable, and she told her boyfriend that Zarda

127. Simonton v. Runyon, 232 F.3d 33 (2d. Cir. 2000), overruled by Zarda v. Altitude
Express, Inc., 883 F.3d 100 (2d Cir. 2018).

128. Id. at 34.
129. Id. at 34 35.
130. Id. at 35.
131. Id. at 34.
132. Id.
133. Id. at 35. The Second Circuit dismissed Oncale as being helpful to Simonton’s case

because “Simonton has alleged that he was discriminated against not because he was a man,
but because of his sexual orientation. Such a claim remains non-cognizable under Title VII.”
Id. at 36.

134. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), cert, granted, 139 S.
Ct. 1599(2019).

135. Id. at 108.
136. Id.

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tried to justify his behavior by informing her of his sexual orientation.137
The client’s boyfriend went to Zarda’s boss with this information and he
was subsequently fired.138 According to Zarda, he did not touch this client
in an inappropriate manner and was only fired because of “his reference to
his sexual orientation.”139 Zarda brought suit and claimed he had been
discriminated against because of his sexual orientation and that he was
terminated from his job as a skydiving instructor “because he failed to
conform to male sex stereotypes by referring to his sexual orientation.”140

The United States District Court for the Eastern District of New York
granted summary judgment in favor of the employer ruling that “although
there was sufficient evidence to permit plaintiff to proceed with his claim
for sexual orientation under New York law, plaintiff had failed to establish
a prima facie case of gender stereotyping discrimination under Title
VII.” 141 A panel of the Second Circuit affirmed the trial court and held that
Title VII’s protections do not include “sexual orientation” based on prior
precedent.142 However, the Second Circuit granted Zarda’s motion for a
rehearing en banc, and ultimately made the decision to overturn its prior
precedent and hold that “sexual orientation discrimination is motivated, at
least in part, by sex and is thus a subset of sex discrimination.”143

To reach its holding, the Second Circuit first identified the question it
had to answer: ’’whether an employee’s sex is necessarily a motivating
factor in discrimination based on sexual orientation.”144 According to the
court, if the answer to this question is yes, then discrimination based on
“sexual orientation” is discrimination based on “sex.”145 The Second
Circuit answered this question in the affirmative:

[T]he most natural reading o f [Title VII]’s prohibition on discrimination
‘because o f . . . 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

137. Id.
138. Id at 108-09.
139. M at 109.
140. Id at 107.
141. M a t 109.
142. Zarda v. Altitude Express, Inc., 855 F.3d 76, 80 (2d Cir. 2017), ajf’d in part, vacated

in part on reh ’g by 833 F.3d 100 (2d Cir. 2018), cert, granted, 139 S. Ct. 1599 (2019).
143. Zarda v. Altitude Express, Inc., 883 F.3d 100, 112 (2d Cir. 2018), cert, granted, 139

S. Ct. 1599 (2019).
144. Id.
145. Id.

276 Campbell Law Review [Vol. 42:257

assumptions about how persons of a certain sex can or should be, which is
an impermissible basis for adverse employment actions.146

With this ruling, the Second Circuit in Zarda showcases how circuits
are now willing to overturn binding precedent and ultimately hold that “sex”
discrimination includes discrimination based on “sexual orientation,” in
part by turning to persuasive reasoning set out in other circuits as well as
guidance from the Supreme Court. The judicial branch may well be the one
to protect LGBTQ citizens from workplace discrimination.

C. Implications o f the Upcoming Supreme Court Decision

Zarda v. Altitude Express and Bostock v. Clayton were consolidated
and argued before the Supreme Court on October 8, 2019.147 During these
oral arguments, the Justices asked a variety of questions to both sides and
posited multiple hypotheticals to the attorneys, including an interesting
hypothetical from Justice Sotomayor about Hooters uniforms.148 Based on
the arguments, “[ljegal pundits have observed that the oral arguments
reflected a closely divided Court with Justice Neil Gorsuch being the likely
swing vote in a 5-4 decision.”149

If the Court were to affirm the decision of the Second Circuit in Zarda,
discrimination based on “sexual orientation” and “gender identity” would
be covered under the protections of Title VII. A decision in the affirmative
would likely have significant ramifications on both employers and
employees alike because of the significant number of LGBTQ individuals
in the workplace who have stated they have been discriminated against.1511
Employers will likely have to implement new policies in the workplace to
be compliant with such a decision.151 If the Court were to reverse the Zarda
decision and determine that “sexual orientation” and “gender identity” are
not covered under Title VII, prior Supreme Court precedent could be in

146. Id.
147. Bostock v. Clayton County. Georgia, supra note 126.
148. Transcript o f Oral Argument, supra note 12, at 18-19. In that oral argument. Justice

Sotomayor asked if “a dress code for Hooters that requires all women to wear a scantily–a
scant dress, is that discriminatory?” Id. at 18.

149. Paul Nason, Hot Issue for 2020: U.S. Supreme Court to Rule on Sexual Orientation
and Gender Identity Discrimination, JDSupra (Jan. 24, 2020), https://penna.ee/Y7EP-
QF4S.

150. “In 2011, about 8 million Americans identified as lesbian, gay, or bisexual. Of those
who so identified, roughly 25% reported experiencing workplace discrimination because
their sexual preference did not match their employer’s expectations.” Kayla Platt Rady, The
Circuit Court Showdown: Will SCOTUS Say YayorNay Under Title VII to LGBT Workplace
Discrimination?, JDSupra (Jan. 17, 2020), https://perma.cc/K9UF-NAAY.

151. See id.

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danger.152 If the Court rules against the employees and determines that such
discrimination is not covered under Title VII, then it will be solely left to
Congress to protect the LGBTQ community by passing the Equality Act or
a similar piece of legislation.

C o n c l u sio n

The varying federal court decisions on the interpretation of “sex” in
Title VII have paved the way for arguments about interpreting “sex” to
include “sexual orientation” and “gender identity,” as well as the inverse.
Courts, particularly the Supreme Court, have expanded the meaning of
“sex” over the decades. Particularly, Price Waterhouse and Oncale
extended the meaning of “sex” by taking it from being viewed as only
discrimination against the opposite sex to now including discrimination by
the same sex and gender stereotyping.153 The stronger argument, in light of
recent Supreme Court decisions, is to interpret “sex” to include both “sexual
orientation” and “gender identity” because it is inconceivable to attempt to
separate discrimination based on sex from discrimination based on “gender
identity” or “sexual orientation”—all of which have blatant undertones of
sex.154 Classifying discrimination based on “sexual orientation” and
“gender identity” as “sex stereotyping” seems to be the most legally sound
way for courts to interpret “sex” in a manner which provides protection to
the LGBTQ community.

Additionally, the reasoning set forth by the Second Circuit in Zarda is
persuasive to point courts in the direction of finding that discrimination
based on “sexual orientation” is a “subset of sex discrimination” and is
therefore actionable under Title VII.155 With this ruling, the court helped to
pave the way for other courts who may be similarly governed by precedent
like Simonton to do what is right for the LGBTQ community and to

152. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989).

153. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989).

154. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015). In Obergefell, the
Supreme Court had the issue of the legality of same-sex marriage to consider. Although this
case is not related to Title VII, it is important to see how the Court has recently viewed the
issues facing the LGBTQ community. The Court held that under the Due Process and Equal
Protection Clauses, couples of the same-sex cannot be deprived of the fundamental right to
marry. Id.

155. Zarda v. Altitude Express, Inc., 883 F.3d 100, 112 13 (2d Cir. 2018), cert, granted,
139 S. Ct. 1599(2019).

278 Campbell Law Review [Vol. 42:257

recognize that discrimination based on “sexual orientation” is
discrimination based on “sex.” 156

When discriminatory decisions are made, whether it be in the
workplace or even when searching for a home, they are made because the
decisionmaker looks at these individuals and thinks, “Well, this is just not
the way things are supposed to be.” This bias is exactly what discrimination
on a failure to conform to gender norms looks like, and it is what the
Supreme Court determined was protected in Price Waterhouse and
classified as impermissible stereotyping based on sex. 1’’7 Further, as the
Seventh Circuit explained in Hively, it is such a basic and common sense
notion that discrimination based on “sexual orientation” is discrimination
based on “sex.” 158

A substantial number of states have made the decision to add
protections to their discrimination laws and a number of courts have
interpreted “sex” to include “gender identity” and “sexual orientation.” In
light of these legislative acts, it seems only logical to continue to move in a
direction where courts interpret “sex” in a way that protects the LGBTQ
citizens from harsh discrimination. Given the difficulty that members of
Congress have in crossing party lines to pass legislation, the future of the
Equality Act is on unsteady ground. In the absence of passing such
legislation, courts should interpret discrimination based on “sexual
orientation” and “gender identity” as being part of “sex stereotyping” based
on nonconformance to gender norms. The tenn “sex” is intrinsically linked
with “sexual orientation” and “gender identity,” and therefore courts must
interpret “sex” in such a way that extends protections to the LGBTQ
persons.

Discrimination based on “sexual orientation” and “gender identity” in
the workplace, education, and housing will likely only continue to grow as
time goes on. It is important that these individuals are allowed the same
protections as any other citizen of the United States. The language of Title
VII should be amended to include language to specifically protect
individuals based on “sexual orientation” and “gender identity.” Congress
should follow the examples set by numerous states and pass the Equality
Act to add “sexual orientation” and “gender identity” as protected classes.
However, if this bill is not passed, then it is up to the courts to interpret
“sex” in a manner which includes “sexual orientation” and “gender identity”
to afford the LGBTQ community the same rights as others.

156. ld. see also Simonton v. Runyon, 232 F.3d 33 (2d. Cir. 2000), overruled by Zarda
v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018).

157. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).
158. Hively v. Ivy Tech Cmty. Coll, of Ind., 853 F.3d 339, 350 (7th Cir. 2017).

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