When a plaintiff is deciding whether to bring a sexual discrimination, sexual harassment and/or hostile work environment claim, the plaintiff must be careful to understand what types of discrimination constitute sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Once such example is the question of whether an employer’s discrimination committed against its employee on the basis of gender or sex stereotyping.
Title VII provides, in pertinent part, that “it shall be unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
In Smith v. City of Salem, 378 F.3d 566, the Sixth Circuit Court of Appeals explained that the United States Supreme Court, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989):
By holding that Title VII protected a woman who failed to conform to social expectations concerning how a woman should look and behave, the [United States] Supreme Court established that Title VII’s reference to “sex” encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.
After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex
Smith, 378 F.3d at 573 (emphasis in original). The Sixth Circuit Court of Appeals went on to hold:
Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.
Id. at 575.
Accordingly, both the United States Supreme Court and the Sixth Circuit Court of Appeals have held that it is unlawful, and a violation of Title VII, for an employer to discriminate against an employee based on the employee’s behavior which does not conform with his or her gender role. Price Waterhouse, supra; Smith, 378 F.3d at 573, 575.
As shown above, determining whether the actions of an employer constitute sexual discrimination in violation of Title VII is essential for a plaintiff in deciding whether to bring a sexual discrimination, sexual harassment and/or hostile work environment claim against the employer. If you have a potential employment dispute, or you believe you have been sexually discriminated against by your employer, you should consult a qualified attorney to help you navigate the nuances of your issue.