b'\x0cSexual Orientation and\nGender Identity\nEmployment Discrimination\n\nby Matthew W. Green, Jr.\nAssociate Professor of Law\nCleveland-Marshall College of Law / Cleveland State University\n\nCALI eLangdell\xc2\xae Press 2017\n\n\x0cAbout the Author\nMatthew W. Green Jr. is an associate professor of law at the Cleveland-Marshall College of Law.\nProfessor Green has taught courses in employment discrimination, employment Law, disability\nlaw and a seminar on sexual orientation and gender identity discrimination. His scholarship\nfocuses on employment discrimination, sexual orientation and the law and workplace retaliation.\nHe earned his J.D. from the University of Baltimore School of Law and LL.M. from Columbia\nUniversity, where he was a Harlan Fiske Stone Scholar.\n\n1\n\n\x0cNotices\nThis is the first edition of this stand-alone chapter, published November 2017. Visit\nhttp://elangdell.cali.org/ for the latest version and for revision history.\nThis work by Matthew W. Green, Jr., is licensed and published by CALI eLangdell Press under a\nCreative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA\n4.0). CALI and CALI eLangdell Press reserve under copyright all rights not expressly granted by\nthis Creative Commons license. CALI and CALI eLangdell Press do not assert copyright in US\nGovernment works or other public domain material included herein. Permissions beyond the scope\nof this license may be available through feedback@cali.org.\nIn brief, the terms of that license are that you may copy, distribute, and display this work, or make\nderivative works, so long as\n\xef\x82\xb7\n\nyou give CALI eLangdell Press and the author credit;\n\n\xef\x82\xb7\n\nyou do not use this work for commercial purposes; and\n\n\xef\x82\xb7\n\nyou distribute any works derived from this one under the same licensing terms as this.\n\nSuggested attribution format for original work:\nMatthew W. Green, Jr., Sexual Orientation and Gender Identity Employment Discrimination, Published by\nCALI eLangdell\xc2\xae Press. Available under a Creative Commons BY-NC-SA 4.0 License.\n\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered trademarks owned by the Center\nfor Computer-Assisted Legal Instruction. The CALI graphical logo is a trademark and may not be\nused beyond the scope of this license without permission.\nShould you create derivative works based on the text of this book or other Creative Commons\nmaterials therein, you may not use this book\xe2\x80\x99s cover art and the aforementioned logos, or any\nderivative thereof, to imply endorsement or otherwise without written permission from CALI.\nThis material does not contain nor is intended to be legal advice. Users seeking legal advice should\nconsult with a licensed attorney in their jurisdiction. The editors have endeavored to provide\ncomplete and accurate information in this book. However, CALI does not warrant that the\ninformation provided is complete and accurate. CALI disclaims all liability to any person for any\nloss caused by errors or omissions in this collection of information.\n\n2\n\n\x0cAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a nonprofit organization with\nover 200 member US law schools, an innovative force pushing legal education toward change for\nthe better. There are benefits to CALI membership for your school, firm, or organization.\nELangdell\xc2\xae is our electronic press with a mission to publish more open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and e-readers; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more lenient copyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials for free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org. Show support for CALI by\nfollowing us on Facebook and Twitter, and by telling your friends and colleagues where you\nreceived your free book.\n\n3\n\n\x0cTable of Contents\nAbout the Author ............................................................................................................................ 1\nNotices ............................................................................................................................................ 2\nAbout CALI eLangdell Press .......................................................................................................... 3\nI.\n\nIntroduction ............................................................................................................................. 5\n\nII.\n\nA Federal Statute Protecting LGBT Employees .................................................................. 6\n\nIII.\n\nTitle VII and Sexual Orientation.......................................................................................... 9\n\nA. Early Judicial Perspectives .................................................................................................. 9\nDeSantis v. Pacific Tel. Co., Inc. ......................................................................................... 9\nNotes and Questions ....................................................................................................... 13\nProblem 1 ....................................................................................................................... 13\nB. The Evolving Meaning of \xe2\x80\x9cDiscrimination Because of Sex\xe2\x80\x9d ............................................ 14\n1.\n\nGender Nonconformity ............................................................................................... 14\n\nPrice Waterhouse v. Ann B. Hopkins ................................................................................ 15\nNotes and Questions ....................................................................................................... 20\n2.\nC.\n\nSame-Sex Harassment ................................................................................................ 21\nStereotyping and Sexual Orientation.............................................................................. 22\n\nBrian D. Prowel v. Wise Business Forms, Inc. .................................................................. 23\nNotes and Questions ....................................................................................................... 30\nProblem 2 ....................................................................................................................... 32\nProblem 3 ....................................................................................................................... 33\nD. Sexual Orientation Discrimination Is Sex Discrimination................................................. 33\nKimberly Hively v. Ivy Tech Community College of Indiana .......................................... 33\nNotes and Questions ....................................................................................................... 46\nProblem 4 ....................................................................................................................... 48\nIV.\n\nGender Identity and Expression ......................................................................................... 48\n\nA. Gender Identity and Expression and Sex Stereotyping...................................................... 50\nSmith v. City of Salem, Ohio ............................................................................................. 50\nNotes and Questions ....................................................................................................... 55\nB. An alternative route to protecting transgender employees ................................................ 58\nProblem 5 ....................................................................................................................... 59\nAppendix ................................................................................................................................... 61\n4\n\n\x0cI.\n\nIntroduction\n\nThis Chapter will address the current protections that are available to lesbian, gay, bisexual\nand transgender (\xe2\x80\x9cLGBT\xe2\x80\x9d) individuals who allege they have been victims of employment\ndiscrimination.1 The Chapter\xe2\x80\x99s primary focus will be on federal statutory law, particularly Title\nVII of the Civil Rights Act of 1964 (\xe2\x80\x9cTitle VII\xe2\x80\x9d). Although the focus here is on federal law,\nAppendix I to this Chapter lists the states that protect individuals from public and/or private\ndiscrimination under state laws.\nLGBT employees have argued with mixed results in the courts that discrimination against\nan individual because of sexual orientation, gender identity or gender expression is also\n\xe2\x80\x9cdiscrimination because of sex\xe2\x80\x9d prohibited by Title VII. As a result, it is necessary to understand\nwhat it means under Title VII to discriminate \xe2\x80\x9cbecause of sex,\xe2\x80\x9d and how that meaning has evolved.\nCases relevant to the issue are included herein. In that regard, while one goal of this Chapter is to\nserve as a stand-alone resource for anyone interested in this area of the law, the Chapter is intended\nprimarily to be used as an additional resource in an Employment Discrimination or related civilrights course. The Chapter or parts of it (including the Problems that are scattered throughout)\nmay be used or adapted to supplement other classroom material. It is both assumed and likely that\nas you review materials contained in this Chapter, you already will have covered certain topics\nearlier in your course. These topics might include, for instance, burden of proof schemes\ncommonly used to analyze employment discrimination claims, as well as cases discussing\n\xe2\x80\x9cdiscrimination because of sex,\xe2\x80\x9d including sexual harassment, and discrimination because of\nreligion. Although the Chapter includes cases addressing such issues as sex discrimination, some\nof those cases have been liberally edited. You may of course skip over any case with which you\nare already familiar (and about which you need no refresher) and only review the Notes, Questions\nand Problems that may follow.\nThis Chapter is divided into four parts. Part I provides a brief overview of congressional\nefforts to enact a statute to protect individuals from employment discrimination on the basis of\nsexual orientation and gender identity. Part II discusses Title VII and sexual orientation. It first\nexamines why early courts tended to reject arguments that the statute protects individuals on that\nbasis. It then discusses subsequent Supreme Court decisions pertaining to sex discrimination that\nhave resulted in some courts rethinking earlier positions on both sexual orientation and gender\nidentity. Finally, Part III discusses ways in which recent courts have handled sexual orientation\ndiscrimination under Title VII. Part IV similarly examines early judicial treatment of claims\n\n1\n\nAlthough this Chapter uses the acronym \xe2\x80\x9cLGBT,\xe2\x80\x9d advocacy groups and others may also use the acronym LGBTQ.\nThe \xe2\x80\x9cQ\xe2\x80\x9d often stands for \xe2\x80\x9cQueer\xe2\x80\x9d or \xe2\x80\x9cQuestioning.\xe2\x80\x9d See e.g., Human Rights Campaign, Glossary of Terms,\nhttp://www.hrc.org/resources/glossary-of-terms; Lori Grisham, What Does the Q in LGBT Q Stand for, USA Today,\nhttps://www.usatoday.com/story/news/nation-now/2015/06/01/lgbtq-questioning-queer-meaning/26925563/.\n\n5\n\n\x0cbrought by individuals alleging discrimination on the basis of their gender identity and/or\nexpression and explores how the law has developed in this area as well.\n\nII. A Federal Statute Protecting LGBT Employees\nIn 1974, New York Representative Bella Abzug introduced the Equality Act, which, had it\nbeen enacted, would have amended several antidiscrimination statutes, including Title VII, to\nprotect individuals from discrimination on the basis of sexual orientation among other traits. The\nbill never made it out of committee. See Lisa Bornstein & Megan Bench, Married on a Sunday,\nFired on a Monday: Approaches to Federal LGBT Civil Rights Protections, 22 Wm. & Mary J.\nWomen & L. 31, 47-48 (2015). Over the next two decades, numerous bills were proposed to\namend the civil rights statutes to prohibit discrimination on the basis of sexual orientation, but\nnone made it beyond committee either. See id.\nIn 1994, the Employment Non-Discrimination Act (\xe2\x80\x9cENDA\xe2\x80\x9d) was introduced in both\nhouses of Congress to protect individuals on the basis of sexual orientation. Rather than to amend\nexisting civil rights laws, ENDA was a stand-alone measure that would have protected individuals\nagainst only employment discrimination. According to Chai Feldblum, who serves as an EEOC\nCommissioner and who drafted the initial version of ENDA, the decision to make the bill a standalone that focused exclusively on the workplace was largely prompted by the political realities\nfacing the LGBT community during that period. Chai R. Feldblum, The Federal Gay Rights Bill:\nFrom Bella to ENDA, in Creating Change: Sexuality, Public Policy, and Civil Rights 201-02 (John\nD\'Emilio et al. eds., 2000). For instance, Feldblum explains that ENDA was born around the time\nthat President Bill Clinton and gay rights advocates had lost the battle to end the ban on gays in\nthe military. That defeat, which resulted in the now defunct Act known as \xe2\x80\x9cDon\xe2\x80\x99t Ask, Don\xe2\x80\x99t\nTell,\xe2\x80\x9d squelched momentum and \xe2\x80\x9cweakened the perceived political power\xe2\x80\x9d of gay rights\norganizations. Id. Against that backdrop, the decision to focus only on employment was\nconsidered a more feasible goal than to try for a more comprehensive bill. Moreover, other civil\nrights communities were concerned that opening Title VII to amendments would risk also opening\nit up to \xe2\x80\x9cunfriendly changes.\xe2\x80\x9d See id. Accordingly, a stand-alone measure, similar to the then\nrecently enacted Americans with Disabilities Act, was favored in lieu of amending existing laws.\nSee id.\nAlthough ENDA originally only protected individuals from discrimination because of\nsexual orientation, a transgender-inclusive ENDA was introduced in the 110th Congress in 2006.\nControversy stirred regarding the addition and it was taken out before the House voted on the\nmeasure. A sexual-orientation only version of ENDA passed in the House in 2007, but not in the\nSenate. Subsequent versions of ENDA again included transgender protections, but the measure\nstill failed to pass both Houses of Congress at the same time. After the doomed attempt in 2007,\nENDA passed the Senate in 2013 but failed to get a vote in the Republican-controlled House. See\ngenerally, Note, William S. Sung, Taking the Fight Back to Title VII: A Case for Redefining\n\xe2\x80\x9cBecause of Sex\xe2\x80\x9d to Include Gender Stereotypes, Sexual Orientation, and Gender Identity, 84 S.\n6\n\n\x0cCal. L. Rev. 487, 495-498, 501-506 (2011) (detailing early attempts to enact the Equality Act and\nENDA).\nIn 2015, Congress and LGBT-rights advocates abandoned ENDA, and in its place, the\nEquality Act of 2015 was introduced in both houses of Congress.\nSee\nhttps://www.congress.gov/bill/114th-congress/house-bill/3185. Similar to the earlier version of\nthe Equality Act introduced by Representative Abzug decades prior, the Equality Act of 2015\nwould have amended existing Civil Rights laws, but this time to protect individuals, among other\nthings, from discrimination on the basis of sexual orientation and gender identity. See id.\nOne reason that advocates abandoned ENDA was because of its broad religious exemption,\nwhich arguably placed all religiously affiliated non-profit organizations beyond the measure\xe2\x80\x99s\nreach. See S.815, 113th Cong, \xc2\xa7 6 (Exemption For Religious Institution) (2013); H.R. 1755, 113th\nCong., \xc2\xa7 (same), https://www.congress.gov/bill/113th-congress/senate-bill/815/text; see also Ed\nO\xe2\x80\x99Keefe, Gay Rights Groups Withdraw Support of ENDA After Hobby Lobby Decision, 9 (The\nWashington Post, July 8, 2014, available at https://www.washingtonpost.com/news/postpolitics/wp/2014/07/08/gay-rights-group-withdrawing-support-of-enda-after-hobby-lobbydecision/?utm_term=.c04a1f34a92e. In other words, most religiously-affiliated organizations\nwould have been exempted from ENDA\xe2\x80\x99s non-discrimination proscriptions. ENDA differed from\nTitle VII in that regard. Title VII only permits religious institutions to discriminate against\nindividuals on the basis of religion but not on the basis of other protected traits enumerated in the\nstatute. See 42 U.S.C. \xc2\xa7\xc2\xa7 2000e-1(a), 2000e-2(h)(2). Accordingly, Title VII\xe2\x80\x99s religious\nprovisions, for example, would not permit a religious institution to discriminate against individuals\non the basis of race or national origin. ENDA, however, would have permitted such entities to\ndiscriminate on the basis of sexual orientation.\nIn 2014, the U.S. Supreme Court decided Hobby Lobby, which permitted closely-held forprofit corporations to claim exemption under the Religious Freedom Restoration Act (\xe2\x80\x9cRFRA\xe2\x80\x9d)\nfrom federal laws that burdened the religious rights of the corporations\xe2\x80\x99 owners. See Burwell v.\nHobby Lobby, 134 S.Ct. 2751 (2014). Advocates grew concerned that ENDA\xe2\x80\x99s already broad\nreligious exemptions coupled with the rights Hobby Lobby extended to for-profit organizations\npromised to swallow whole the anti-discrimination protections ENDA purported to provide. See\nO\xe2\x80\x99Keefe, supra. The concern was not without merit. In a suit brought by the EEOC, a federal\ndistrict court held that although Title VII was violated when an employer fired a male-to-female\ntransgender employee who wanted to dress in accord with her gender identity, RFRA operated as\na complete defense to any violation of the employee\xe2\x80\x99s statutory rights. See EEOC v. R.G. & G.R.\nFuneral Homes, Inc., 201 F. Supp.3d 837 (E.D. Mich. 2016). That decision is currently pending\nappeal. See EEOC v. R.G. & G.R. Funeral Homes, Inc., No. 16-2424 (6th Cir., filed Oct. 13,\n2016).\nUnlike ENDA, the Equality Act expressly provided that RFRA \xe2\x80\x9cshall not provide a claim\n. . . defense . . . or [other] . . . basis for challenging the application or enforcement of [Title VII].\xe2\x80\x9d\nS. 1858, 114th Cong. \xc2\xa7 1107.Claims (2015); H.R. 3185, 114th Cong. \xc2\xa7 1107.Claims (2015),\nhttps://www.congress.gov/bill/114th-congress/house-bill/3185/text. The Equality Act was reintroduced in the 115th Congress in May 2017. See Dems Re-Introducing LGBT Rights Bill, The\n7\n\n\x0cAdvocate (May 1, 2017), http://www.advocate.com/politics/2017/5/01/dems-re-introducing-lgbtrights-bill. That measure will face an uphill battle in the current Congress. See id. Moreover,\nuntil it or similar legislation is enacted, then at least at the federal level, LGBT employees will\nhave to continue to rely on Title VII to fill the gap in statutory protection against employment\ndiscrimination.\n\xe2\x80\xa6\nPlaintiffs have long argued that Title VII\xe2\x80\x99s prohibition against sex discrimination also bars\ndiscrimination on the basis of sexual orientation and gender identity. You may already be familiar\nwith Title VII\xe2\x80\x99s legislative history as it pertains to \xe2\x80\x9csex.\xe2\x80\x9d It bears briefly repeating here. It is not\nclear what Congress had in mind when it included \xe2\x80\x9csex\xe2\x80\x9d as a trait protected by Title VII. The\nlegislative history is sparse. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986)\n(noting that there is \xe2\x80\x9clittle legislative history to guide us in interpreting the Act\'s prohibition against\ndiscrimination based on \xe2\x80\x9csex\xe2\x80\x9d). \xe2\x80\x9cSex\xe2\x80\x9d was not originally included among the traits protected by\nTitle VII. It was added on the floor of the House by Representative Howard Smith, a Virginia\ncongressman, who opposed Title VII, one day before the House voted on the bill. See id. It is\ncommonly understood that the amendment to add \xe2\x80\x9csex\xe2\x80\x9d was intended as a poison pill. See\ngenerally Bornstein & Bench, supra at 35-36. During the debate over the sex amendment, neither\nsexual orientation nor gender identity was ever mentioned. See e.g., I. Bennett Capers, Sex(ual\nOrientation) and Title VII, 91 Colum. L. Rev. 1158, 1168 (1991) (\xe2\x80\x9cNothing in the legislative\nhistory suggests that Congress considered whether the word \xe2\x80\x9csex\xe2\x80\x9d encompassed sexuality or\nsexual practices\xe2\x80\x9d); see also Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.\n1977) overruled by Schwenck v. Hartford, 204 F.3d 1197, 1201-02 (9th Cir. 2000) (concluding that\nTitle VII\xe2\x80\x99s legislative history demonstrates that Congress did not intend to include \xe2\x80\x9ctranssexuals\xe2\x80\x9d\nwithin the prohibition of discrimination \xe2\x80\x9cbecause of sex\xe2\x80\x9d).\nDoes the failure of members of Congress to utter the words sexual orientation, transgender\nor gender identity necessarily mean that those traits fall outside the scope of Title VII\xe2\x80\x99s prohibition\nof \xe2\x80\x9cdiscrimination because of sex?\xe2\x80\x9d Early courts universally answered that question in the\naffirmative. More recently, some courts and the EEOC have determined that the statute does\nindeed protect individuals from discrimination on these bases although that position is far from\nbeing uniform among the courts. It is fair to say that the law in this area is evolving. The following\nmaterials explore the murky legal landscape.\n\n8\n\n\x0cIII. Title VII and Sexual Orientation\nA.\n\nEarly Judicial Perspectives\n\nDeSantis v. Pacific Tel. Co., Inc.\n608 F.2d 327 (9th 1978).\nCHOY, Circuit Judge:\nMale and female homosexuals brought three separate federal district court actions claiming that\ntheir employers or former employers discriminated against them in employment decisions because\nof their homosexuality. They alleged that such discrimination violated Title VII of the Civil Rights\nAct of 1964, 42 U.S.C. \xc2\xa7 2000e et seq., and 42 U.S.C. \xc2\xa71985(3). The district courts dismissed the\ncomplaints as failing to state claims under either statute. Plaintiffs below appealed. Because of the\nsimilarity of issues involved, this court consolidated the appeals at the request of counsel for\nappellants. We affirm.\nI. Statement of the Case\nA. Strailey v. Happy Times Nursery School, Inc.\nAppellant Strailey, a male, was fired by the Happy Times Nursery School after two years\xe2\x80\x99 service\nas a teacher. He alleged that he was fired because he wore a small gold ear-loop to school prior to\nthe commencement of the school year. He filed a charge with the Equal Employment Opportunity\nCommission (EEOC) which the EEOC rejected because of an alleged lack of jurisdiction over\nclaims of discrimination based on sexual orientation. He then filed suit on behalf of himself and\nall others similarly situated, seeking declaratory, injunctive, and monetary relief. The district court\ndismissed the complaint as failing to state a claim under either Title VII or \xc2\xa7 1985(3).\nB. DeSantis v. Pacific Telephone & Telegraph Co.\nDeSantis, Boyle, and Simard, all males, claimed that Pacific Telephone & Telegraph Co. (PT&T)\nimpermissibly discriminated against them because of their homosexuality. DeSantis alleged that\nhe was not hired when a PT&T supervisor concluded that he was a homosexual. According to\nappellants\xe2\x80\x99 brief, \xe2\x80\x9cBOYLE was continually harassed by his co-workers and had to quit to preserve\nhis health after only three months because his supervisors did nothing to alleviate this condition.\xe2\x80\x9d\nFinally, \xe2\x80\x9cSIMARD was forced to quit under similar conditions after almost four years of\nemployment with PT&T, but he was harassed by his supervisors (as well). . . . In addition, his\npersonnel file has been marked as not eligible for rehire, and his applications for employment were\nrejected by PT&T in 1974 and 1976.\xe2\x80\x9d Appellants DeSantis, Boyle, and Simard also alleged that\nPT&T officials have publicly stated that they would not hire homosexuals.\nThese plaintiffs also filed charges with the EEOC, also rejected by the EEOC for lack of\njurisdiction. They then filed suit on behalf of themselves and all others similarly situated seeking\n9\n\n\x0cdeclaratory, injunctive, and monetary relief under Title VII. . . . They also prayed that the district\ncourt issue mandamus commanding the EEOC to process charges based on sexual orientation. The\ndistrict court dismissed their complaint. It held that the court lacked jurisdiction to compel the\nEEOC to alter its interpretation of Title VII. It also held that appellants had not stated viable claims\nunder . . . Title VII. . . .\nC. Lundin v. Pacific Telephone & Telegraph\nLundin and Buckley, both females, were operators with PT&T. They filed suit in federal court\nalleging that PT&T discriminated against them because of their known lesbian relationship and\neventually fired them. They also alleged that they endured numerous insults by PT&T employees\nbecause of their relationship. Finally, Lundin alleged that the union that represented her as a PT&T\noperator failed adequately to represent her interests and failed adequately to present her grievance\nregarding her treatment. Appellants sought monetary and injunctive relief. The district court\ndismissed their suit as not stating a claim upon which relief could be granted. . . .\nII. Title VII Claim\nAppellants argue first that the district courts erred in holding that Title VII does not prohibit\ndiscrimination on the basis of sexual preference. They claim that in prohibiting certain\nemployment discrimination on the basis of \xe2\x80\x9csex,\xe2\x80\x9d Congress meant to include discrimination on the\nbasis of sexual orientation. They add that in a trial they could establish that discrimination against\nhomosexuals disproportionately effects [sic] men and that this disproportionate impact and\ncorrelation between discrimination on the basis of sexual preference and discrimination on the\nbasis of \xe2\x80\x9csex\xe2\x80\x9d requires that sexual preference be considered a subcategory of the \xe2\x80\x9csex\xe2\x80\x9d category\nof Title VII. . . .\nA. Congressional Intent in Prohibiting \xe2\x80\x9cSex\xe2\x80\x9d Discrimination\nIn Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977), plaintiff argued that her\nemployer had discriminated against her because she was undergoing a sex transformation and that\nthis discrimination violated Title VII\xe2\x80\x99s prohibition on sex discrimination. This court rejected that\nclaim, writing: The cases interpreting Title VII sex discrimination provisions agree that they were\nintended to place women on an equal footing with men. (Citations omitted.)\nGiving the statute its plain meaning, this court concludes that Congress had only the traditional\nnotions of \xe2\x80\x9csex\xe2\x80\x9d in mind. Later legislative activity makes this narrow definition even more evident.\nSeveral bills have been introduced to amend the Civil Rights Act to prohibit discrimination against\n\xe2\x80\x9csexual preference.\xe2\x80\x9d None have [sic] been enacted into law.\nCongress has not shown any intent other than to restrict the term \xe2\x80\x9csex\xe2\x80\x9d to its traditional meaning.\nTherefore, this court will not expand Title VII\xe2\x80\x99s application in the absence of Congressional\nmandate. The manifest purpose of Title VII\xe2\x80\x99s prohibition against sex discrimination in\nemployment is to ensure that men and women are treated equally, absent a bona fide relationship\nbetween the qualifications for the job and the person\xe2\x80\x99s sex. . . .\n10\n\n\x0cFollowing Holloway, we conclude that Title VII\xe2\x80\x99s prohibition of \xe2\x80\x9csex\xe2\x80\x9d discrimination applies only\nto discrimination on the basis of gender and should not be judicially extended to include sexual\npreference such as homosexuality. . . .\nB. Disproportionate Impact\nAppellants argue that recent decisions dealing with disproportionate impact require that\ndiscrimination against homosexuals fall within the purview of Title VII. They contend that these\nrecent decisions, like Griggs v. Duke Power Co., 401 U.S. 424 (1971), establish that any\nemployment criterion that affects one sex more than the other violates Title VII. They quote from\nGriggs:\nWhat is required by Congress (under Title VII) is the removal of artificial,\narbitrary, and unnecessary barriers to employment when the barriers operate\ninvidiously to discriminate on the basis of racial or other impermissible\nclassifications.\n401 U.S. at 431. They claim that in a trial they could prove that discrimination against homosexuals\ndisproportionately affects men both because of the greater incidence of homosexuality in the male\npopulation and because of the greater likelihood of an employer\xe2\x80\x99s discovering male homosexuals\ncompared to female homosexuals.\nAssuming that appellants can otherwise satisfy the requirement of Griggs, we do not believe that\nGriggs can be applied to extend Title VII protection to homosexuals. In finding that the\ndisproportionate impact of educational tests on blacks violated Title VII, the Supreme Court in\nGriggs sought to effectuate a major congressional purpose in enacting Title VII: protection of\nblacks from employment discrimination. For as the Supreme Court noted in Philbrook v. Goldgett,\n421 U.S. 707 (1975), in construing a statute, \xe2\x80\x9c(o)ur objective . . . is to ascertain the congressional\nintent and give effect to the legislative will.\xe2\x80\x9d Id. at 713.\nThe Holloway court noted that in passing Title VII Congress did not intend to protect sexual\norientation and has repeatedly refused to extend such protection. . . . Appellants now ask us to\nemploy the disproportionate impact decisions as an artifice to \xe2\x80\x9cbootstrap\xe2\x80\x9d Title VII protection for\nhomosexuals under the guise of protecting men generally.\nThis we are not free to do. Adoption of this bootstrap device would frustrate congressional\nobjectives as explicated in Holloway, not effectuate congressional goals as in Griggs. It would\nachieve by judicial \xe2\x80\x9cconstruction\xe2\x80\x9d what Congress did not do and has consistently refused to do on\nmany occasions. It would violate the rule that our duty in construing a statute is to \xe2\x80\x9cascertain . . .\nand give effect to the legislative will.\xe2\x80\x9d Philbrook, 421 U.S. at 713. We conclude that the Griggs\ndisproportionate impact theory may not be applied to extend Title VII protection to homosexuals.\nC. Differences in Employment Criteria\n11\n\n\x0cAppellants next contend that recent decisions have held that an employer generally may not use\ndifferent employment criteria for men and women. They claim that if a male employee prefers\nmales as sexual partners, he will be treated differently from a female who prefers male partners.\nThey conclude that the employer thus uses different employment criteria for men and women and\nviolates the Supreme Court\xe2\x80\x99s warning in Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971):\nThe Court of Appeals therefore erred in reading this section as permitting one\nhiring policy for women and another for men . . . .\nId. at 544.\nWe must again reject appellants\xe2\x80\x99 efforts to \xe2\x80\x9cbootstrap\xe2\x80\x9d Title VII protection for homosexuals. While\nwe do not express approval of an employment policy that differentiates according to sexual\npreference, we note that whether dealing with men or women the employer is using the same\ncriterion: it will not hire or promote a person who prefers sexual partners of the same sex. Thus\nthis policy does not involve different decisional criteria for the sexes.\nD. Interference with Association\nAppellants argue that the EEOC has held that discrimination against an employee because of the\nrace of the employee\xe2\x80\x99s friends may constitute discrimination based on race in violation of Title\nVII. . . . They contend that analogously discrimination because of the sex of the employees\xe2\x80\x99 sexual\npartner should constitute discrimination based on sex.\nAppellants, however, have not alleged that appellees have policies of discriminating against\nemployees because of the gender of their friends. That is, they do not claim that the appellees will\nterminate anyone with a male (or female) friend. They claim instead that the appellees discriminate\nagainst employees who have a certain type of relationship i.e., homosexual relationship with\ncertain friends. As noted earlier, that relationship is not protected by Title VII. . . . Thus, assuming\nthat it would violate Title VII for an employer to discriminate against employees because of the\ngender of their friends, appellants\xe2\x80\x99 claims do not fall within this purported rule.\nE. Effeminacy\nAppellant Strailey contends that he was terminated by the Happy Times Nursery School because\nthat school felt that it was inappropriate for a male teacher to wear an earring to school. He claims\nthat the school\xe2\x80\x99s reliance on a stereotype that a male should have a virile rather than an effeminate\nappearance violates Title VII.\n\n12\n\n\x0cIn Holloway this court noted that Congress intended Title VII\xe2\x80\x99s ban on sex discrimination in\nemployment to prevent discrimination because of gender, not because of sexual orientation or\npreference. . . . Recently the Fifth Circuit similarly read the legislative history of Title VII and\nconcluded that Title VII thus does not protect against discrimination because of effeminacy. Smith\nv. Liberty Mutual Insurance Co., 569 F.2d at 326-27. We agree and hold that discrimination\nbecause of effeminacy, like discrimination because of homosexuality . . . or transsexualism\n(Holloway), does not fall within the purview of Title VII.\nE. Conclusion as to Title VII Claim\nHaving determined that appellants\xe2\x80\x99 allegations do not implicate Title VII\xe2\x80\x99s prohibition on sex\ndiscrimination, we affirm the district court\xe2\x80\x99s dismissals of the Title VII claims.\nAFFIRMED.\nNotes and Questions\n1.\nDiscrimination \xe2\x80\x9cbecause of sex\xe2\x80\x9d: According to the Ninth Circuit, what did Congress\nintend by including the word \xe2\x80\x9csex\xe2\x80\x9d in Title VII?\n2.\nAssociational Discrimination: The court rejected the plaintiffs\xe2\x80\x99 argument that their\nemployers engaged in associational discrimination. Why does the court reject that argument? As\nthe court explains (and as discussed in cases set forth later in this chapter), courts have accepted\nsuch claims in the context of race. Consider the following Problem:\nProblem 1\nLori, a white female sales associate at Go-Mart, had received glowing employment evaluations for\nthe six years she had worked for the company. Her supervisors throughout the years had often told\nLori that she was destined for management. In year seven of her employment, Lori began dating\nMark Johnson, a black male, who visited her one day at work. Several of Lori\xe2\x80\x99s coworkers saw\nMark and Lori kiss during his visit, and informed management. Go-Mart managers decided to set\nup an \xe2\x80\x9cintervention\xe2\x80\x9d whereby they cornered Lori in the break room and told her that while she had\nreal promise, her \xe2\x80\x9cparticular type of relationship\xe2\x80\x9d would hurt her chances to become a manager.\nLori responded that her personal business was her own and her relationship did not affect her job\nperformance. The next few weeks were sheer havoc for Lori. Her every move was scrutinized and\nshe was written up for small matters, such as not fastening the top button on her smock despite the\nabsence of any such formal rule in Go-Mart\xe2\x80\x99s policy manual. A week later, Go-Mart\xe2\x80\x99s store\nmanager fired her allegedly for being impolite to customers. Lori contends that the real reason for\nher discharge was because of her relationship with Mark.\n\n13\n\n\x0cLori brings a Title VII race discrimination claim against Go-Mart. The company defends\nagainst Lori\xe2\x80\x99s claim by arguing that it did not fire Lori because of her race; it did so because of her\nrelationship. Please analyze Lori\xe2\x80\x99s claim under Title VII.\nAssume that instead of dating Mark, Lori was dating Theresa, and the relationship yielded\nthe same response from Lori\xe2\x80\x99s employers. In light of DeSantis, would the outcome differ?` Should\nit? What if instead of race or sex, religion was the issue? Assume that Lori, her co-workers and\nmanagers are Episcopalians and feel strongly that Episcopalians should date their own kind. Mark\nis Jewish. Different result from the scenario involving race or sex?\n\nB.\n\nThe Evolving Meaning of \xe2\x80\x9cDiscrimination Because of Sex\xe2\x80\x9d\n\nTwo Supreme Court decisions, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and\nOncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) are often considered as having\nexpanded the scope of Title VII\xe2\x80\x99s prohibition of \xe2\x80\x9cdiscrimination because of sex.\xe2\x80\x9d They\nundoubtedly have had a profound effect on the way courts have handled Title VII claims brought\nby LGBT employees alleging discrimination because of their sex, sexual orientation, gender\nidentity or gender expression. Both cases are discussed below.\n1.\nGender Nonconformity\nThe court in DeSantis rejected the argument by one of the plaintiffs that Title VII had been\nviolated when his employer discriminated against him based on his effeminacy. According to the\ncourt \xe2\x80\x9ceffeminacy, like discrimination because of homosexuality . . . or transsexualism . . . does\nnot fall within the purview of Title VII.\xe2\x80\x9d Revisit the court\xe2\x80\x99s holding in that regard after reading the\nfollowing case.\n\n14\n\n\x0cPrice Waterhouse v. Ann B. Hopkins\n490 U.S. 228 (1989).\nOpinion\nJustice BRENNAN announced the judgment of the Court and delivered an opinion, in which\nJustice MARSHALL, Justice BLACKMUN, and Justice STEVENS join.\nAnn Hopkins was a senior manager in an office of Price Waterhouse when she was proposed for\npartnership in 1982. She was neither offered nor denied admission to the partnership; instead, her\ncandidacy was held for reconsideration the following year. When the partners in her office later\nrefused to repropose her for partnership, she sued Price Waterhouse under Title VII of the Civil\nRights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. \xc2\xa7 2000e et seq., charging that the firm\nhad discriminated against her on the basis of sex in its decisions regarding partnership. Judge\nGesell in the Federal District Court for the District of Columbia ruled in her favor on the question\nof liability, 618 F. Supp. 1109 (1985), and the Court of Appeals for the District of Columbia Circuit\naffirmed. 263 U.S.App.D.C. 321, 825 F.2d 458 (1987). We granted certiorari to resolve a conflict\namong the Courts of Appeals concerning the respective burdens of proof of a defendant and\nplaintiff in a suit under Title VII when it has been shown that an employment decision resulted\nfrom a mixture of legitimate and illegitimate motives. 485 U.S. 933, 108 S.Ct. 1106, 99 L.Ed.2d\n268 (1988).\n\nI\nAt Price Waterhouse, a nationwide professional accounting partnership, a senior manager becomes\na candidate for partnership when the partners in her local office submit her name as a candidate.\nAll of the other partners in the firm are then invited to submit written comments on each\ncandidate\xe2\x80\x94either on a \xe2\x80\x9clong\xe2\x80\x9d or a \xe2\x80\x9cshort\xe2\x80\x9d form, depending on the partner\xe2\x80\x99s degree of exposure to\nthe candidate. Not every partner in the firm submits comments on every candidate. After reviewing\nthe comments and interviewing the partners who submitted them, the firm\xe2\x80\x99s Admissions\nCommittee makes a recommendation to the Policy Board. This recommendation will be either that\nthe firm accept the candidate for partnership, put her application on \xe2\x80\x9chold,\xe2\x80\x9d or deny her the\npromotion outright. The Policy Board then decides whether to submit the candidate\xe2\x80\x99s name to the\nentire partnership for a vote, to \xe2\x80\x9chold\xe2\x80\x9d her candidacy, or to reject her. The recommendation of the\nAdmissions Committee, and the decision of the Policy Board, are not controlled by fixed\nguidelines: a certain number of positive comments from partners will not guarantee a candidate\xe2\x80\x99s\nadmission to the partnership, nor will a specific quantity of negative comments necessarily defeat\nher application. Price Waterhouse places no limit on the number of persons whom it will admit to\nthe partnership in any given year.\nAnn Hopkins had worked at Price Waterhouse\xe2\x80\x99s Office of Government Services in Washington,\nD.C., for five years when the partners in that office proposed her as a candidate for partnership.\n15\n\n\x0cOf the 662 partners at the firm at that time, 7 were women. Of the 88 persons proposed for\npartnership that year, only 1\xe2\x80\x94Hopkins\xe2\x80\x94was a woman. Forty-seven of these candidates were\nadmitted to the partnership, 21 were rejected, and 20\xe2\x80\x94including Hopkins\xe2\x80\x94were \xe2\x80\x9cheld\xe2\x80\x9d for\nreconsideration the following year. Thirteen of the 32 partners who had submitted comments on\nHopkins supported her bid for partnership. Three partners recommended that her candidacy be\nplaced on hold, eight stated that they did not have an informed opinion about her, and eight\nrecommended that she be denied partnership.\nIn a jointly prepared statement supporting her candidacy, the partners in Hopkins\xe2\x80\x99 office\nshowcased her successful 2\xe2\x80\x93year effort to secure a $25 million contract with the Department of\nState, labeling it \xe2\x80\x9can outstanding performance\xe2\x80\x9d and one that Hopkins carried out \xe2\x80\x9cvirtually at the\npartner level.\xe2\x80\x9d Plaintiff\xe2\x80\x99s Exh. 15. Despite Price Waterhouse\xe2\x80\x99s attempt at trial to minimize her\ncontribution to this project, Judge Gesell specifically found that Hopkins had \xe2\x80\x9cplayed a key role\nin Price Waterhouse\xe2\x80\x99s successful effort to win a multi-million dollar contract with the Department\nof State.\xe2\x80\x9d 618 F. Supp., at 1112. Indeed, he went on, \xe2\x80\x9c[n]one of the other partnership candidates at\nPrice Waterhouse that year had a comparable record in terms of successfully securing major\ncontracts for the partnership.\xe2\x80\x9d Ibid.\nThe partners in Hopkins\xe2\x80\x99 office praised her character as well as her accomplishments, describing\nher in their joint statement as \xe2\x80\x9can outstanding professional\xe2\x80\x9d who had a \xe2\x80\x9cdeft touch,\xe2\x80\x9d a \xe2\x80\x9cstrong\ncharacter, independence and integrity.\xe2\x80\x9d Plaintiff\xe2\x80\x99s Exh. 15. Clients appear to have agreed with\nthese assessments. At trial, one official from the State Department described her as \xe2\x80\x9cextremely\ncompetent, intelligent,\xe2\x80\x9d \xe2\x80\x9cstrong and forthright, very productive, energetic and creative.\xe2\x80\x9d Tr. 150.\nAnother high-ranking official praised Hopkins\xe2\x80\x99 decisiveness, broadmindedness, and \xe2\x80\x9cintellectual\nclarity\xe2\x80\x9d; she was, in his words, \xe2\x80\x9ca stimulating conversationalist.\xe2\x80\x9d Id., at 156\xe2\x80\x93157. Evaluations such\nas these led Judge Gesell to conclude that Hopkins \xe2\x80\x9chad no difficulty dealing with clients and her\nclients appear to have been very pleased with her work\xe2\x80\x9d and that she \xe2\x80\x9cwas generally viewed as a\nhighly competent project leader who worked long hours, pushed vigorously to meet deadlines and\ndemanded much from the multidisciplinary staffs with which she worked.\xe2\x80\x9d 618 F. Supp., at 1112\xe2\x80\x93\n1113.\nOn too many occasions, however, Hopkins\xe2\x80\x99 aggressiveness apparently spilled over into\nabrasiveness. Staff members seem to have borne the brunt of Hopkins\xe2\x80\x99 brusqueness. Long before\nher bid for partnership, partners evaluating her work had counseled her to improve her relations\nwith staff members. Although later evaluations indicate an improvement, Hopkins\xe2\x80\x99 perceived\nshortcomings in this important area eventually doomed her bid for partnership. Virtually all of the\npartners\xe2\x80\x99 negative remarks about Hopkins\xe2\x80\x94even those of partners supporting her\xe2\x80\x94had to do with\nher \xe2\x80\x9cinterpersonal skills.\xe2\x80\x9d Both \xe2\x80\x9c[s]upporters and opponents of her candidacy,\xe2\x80\x9d stressed Judge\nGesell, \xe2\x80\x9cindicated that she was sometimes overly aggressive, unduly harsh, difficult to work with\nand impatient with staff.\xe2\x80\x9d Id., at 1113.\nThere were clear signs, though, that some of the partners reacted negatively to Hopkins\xe2\x80\x99\npersonality because she was a woman. One partner described her as \xe2\x80\x9cmacho\xe2\x80\x9d (Defendant\xe2\x80\x99s Exh.\n30); another suggested that she \xe2\x80\x9covercompensated for being a woman\xe2\x80\x9d (Defendant\xe2\x80\x99s Exh. 31); a\nthird advised her to take \xe2\x80\x9ca course at charm school\xe2\x80\x9d (Defendant\xe2\x80\x99s Exh. 27). Several partners\n16\n\n\x0ccriticized her use of profanity; in response, one partner suggested that those partners objected to\nher swearing only \xe2\x80\x9cbecause it\xe2\x80\x99s a lady using foul language.\xe2\x80\x9d Tr. 321. Another supporter explained\nthat Hopkins \xe2\x80\x9cha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an\nauthoritative, formidable, but much more appealing lady ptr candidate.\xe2\x80\x9d Defendant\xe2\x80\x99s Exh. 27. But\nit was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the\nreasons for the Policy Board\xe2\x80\x99s decision to place her candidacy on hold who delivered the coup de\ngrace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should\n\xe2\x80\x9cwalk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair\nstyled, and wear jewelry.\xe2\x80\x9d 618 F. Supp., at 1117.\nDr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie\xe2\x80\x93Mellon\nUniversity, testified at trial that the partnership selection process at Price Waterhouse was likely\ninfluenced by sex stereotyping. Her testimony focused not only on the overtly sex-based comments\nof partners but also on gender-neutral remarks, made by partners who knew Hopkins only slightly,\nthat were intensely critical of her. One partner, for example, baldly stated that Hopkins was\n\xe2\x80\x9cuniversally disliked\xe2\x80\x9d by staff (Defendant\xe2\x80\x99s Exh. 27), and another described her as \xe2\x80\x9cconsistently\nannoying and irritating\xe2\x80\x9d (ibid.); yet these were people who had had very little contact with\nHopkins. According to Fiske, Hopkins\xe2\x80\x99 uniqueness (as the only woman in the pool of candidates)\nand the subjectivity of the evaluations made it likely that sharply critical remarks such as these\nwere the product of sex stereotyping\xe2\x80\x94although Fiske admitted that she could not say with\ncertainty whether any particular comment was the result of stereotyping. Fiske based her opinion\non a review of the submitted comments, explaining that it was commonly accepted practice for\nsocial psychologists to reach this kind of conclusion without having met any of the people involved\nin the decisionmaking process.\nIn previous years, other female candidates for partnership also had been evaluated in sex-based\nterms. As a general matter, Judge Gesell concluded, \xe2\x80\x9c[c]andidates were viewed favorably if\npartners believed they maintained their femin[in]ity while becoming effective professional\nmanagers\xe2\x80\x9d; in this environment, \xe2\x80\x9c[t]o be identified as a \xe2\x80\x98women\xe2\x80\x99s lib[b]er\xe2\x80\x99 was regarded as [a]\nnegative comment.\xe2\x80\x9d 618 F. Supp., at 1117. In fact, the judge found that in previous years \xe2\x80\x9c[o]ne\npartner repeatedly commented that he could not consider any woman seriously as a partnership\ncandidate and believed that women were not even capable of functioning as senior managers\xe2\x80\x94yet\nthe firm took no action to discourage his comments and recorded his vote in the overall summary\nof the evaluations.\xe2\x80\x9d Ibid.\nJudge Gesell found that Price Waterhouse legitimately emphasized interpersonal skills in its\npartnership decisions, and also found that the firm had not fabricated its complaints about Hopkins\xe2\x80\x99\ninterpersonal skills as a pretext for discrimination. Moreover, he concluded, the firm did not give\ndecisive emphasis to such traits only because Hopkins was a woman; although there were male\ncandidates who lacked these skills but who were admitted to partnership, the judge found that these\ncandidates possessed other, positive traits that Hopkins lacked.\nThe judge went on to decide, however, that some of the partners\xe2\x80\x99 remarks about Hopkins stemmed\nfrom an impermissibly cabined view of the proper behavior of women, and that Price Waterhouse\nhad done nothing to disavow reliance on such comments. He held that Price Waterhouse had\nunlawfully discriminated against Hopkins on the basis of sex by consciously giving credence and\n17\n\n\x0ceffect to partners\xe2\x80\x99 comments that resulted from sex stereotyping. Noting that Price Waterhouse\ncould avoid equitable relief by proving by clear and convincing evidence that it would have placed\nHopkins\xe2\x80\x99 candidacy on hold even absent this discrimination, the judge decided that the firm had\nnot carried this heavy burden.\n\nA\nIn passing Title VII, Congress made the simple but momentous announcement that sex, race,\nreligion, and national origin are not relevant to the selection, evaluation, or compensation of\nemployees. Yet, the statute does not purport to limit the other qualities and characteristics that\nemployers may take into account in making employment decisions. The converse, therefore, of\n\xe2\x80\x9cfor cause\xe2\x80\x9d legislation, Title VII eliminates certain bases for distinguishing among employees\nwhile otherwise preserving employers\xe2\x80\x99 freedom of choice. This balance between employee rights\nand employer prerogatives turns out to be decisive in the case before us.\nCongress\xe2\x80\x99 intent to forbid employers to take gender into account in making employment decisions\nappears on the face of the statute. In now-familiar language, the statute forbids an employer to\n\xe2\x80\x9cfail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to\nhis compensation, terms, conditions, or privileges of employment,\xe2\x80\x9d or to \xe2\x80\x9climit, segregate, or\nclassify his employees or applicants for employment in any way which would deprive or tend to\ndeprive any individual of employment opportunities or otherwise adversely affect his status as an\nemployee, because of such individual\xe2\x80\x99s ... sex.\xe2\x80\x9d 42 U.S.C. \xc2\xa7\xc2\xa7 2000e\xe2\x80\x932(a)(1), (2) (emphasis added).\nWe take these words to mean that gender must be irrelevant to employment decisions. To construe\nthe words \xe2\x80\x9cbecause of\xe2\x80\x9d as colloquial shorthand for \xe2\x80\x9cbut-for causation,\xe2\x80\x9d as does Price Waterhouse,\nis to misunderstand them.\n\xe2\x80\xa6\nC\nIn saying that gender played a motivating part in an employment decision, we mean that, if we\nasked the employer at the moment of the decision what its reasons were and if we received a\ntruthful response, one of those reasons would be that the applicant or employee was a woman. In\nthe specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman\ncannot be aggressive, or that she must not be, has acted on the basis of gender.\n\xe2\x80\xa6\nAs to the existence of sex stereotyping in this case, we are not inclined to quarrel with the District\nCourt\xe2\x80\x99s conclusion that a number of the partners\xe2\x80\x99 comments showed sex stereotyping at work. See\ninfra, at 1793\xe2\x80\x931794. As for the legal relevance of sex stereotyping, we are beyond the day when\nan employer could evaluate employees by assuming or insisting that they matched the stereotype\nassociated with their group, for \xe2\x80\x9c \xe2\x80\x98[i]n forbidding employers to discriminate against individuals\nbecause of their sex, Congress intended to strike at the entire spectrum of disparate treatment of\n18\n\n\x0cmen and women resulting from sex stereotypes.\xe2\x80\x99 \xe2\x80\x9d Los Angeles Dept. of Water and Power v.\nManhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 1375, n. 13, 55 L.Ed.2d 657 (1978), quoting\nSprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). An employer who objects to\naggressiveness in women but whose positions require this trait places women in an intolerable and\nimpermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.\nTitle VII lifts women out of this bind.\nRemarks at work that are based on sex stereotypes do not inevitably prove that gender played a\npart in a particular employment decision. The plaintiff must show that the employer actually relied\non her gender in making its decision. In making this showing, stereotyped remarks can certainly\nbe evidence that gender played a part. In any event, the stereotyping in this case did not simply\nconsist of stray remarks. On the contrary, Hopkins proved that Price Waterhouse invited partners\nto submit comments; that some of the comments stemmed from sex stereotypes; that an important\npart of the Policy Board\xe2\x80\x99s decision on Hopkins was an assessment of the submitted comments; and\nthat Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations. This is not, as\nPrice Waterhouse suggests, \xe2\x80\x9cdiscrimination in the air\xe2\x80\x9d; rather, it is, as Hopkins puts it,\n\xe2\x80\x9cdiscrimination brought to ground and visited upon\xe2\x80\x9d an employee. Brief for Respondent 30. By\nfocusing on Hopkins\xe2\x80\x99 specific proof, however, we do not suggest a limitation on the possible ways\nof proving that stereotyping played a motivating role in an employment decision, and we refrain\nfrom deciding here which specific facts, \xe2\x80\x9cstanding alone,\xe2\x80\x9d would or would not establish a\nplaintiff\xe2\x80\x99s case, since such a decision is unnecessary in this case. But see post, at 1805\n(O\xe2\x80\x99CONNOR, J., concurring in judgment).\n...\nIn finding that some of the partners\xe2\x80\x99 comments reflected sex stereotyping, the District Court relied\nin part on Dr. Fiske\xe2\x80\x99s expert testimony. Without directly impugning Dr. Fiske\xe2\x80\x99s credentials or\nqualifications, Price Waterhouse insinuates that a social psychologist is unable to identify sex\nstereotyping in evaluations without investigating whether those evaluations have a basis in reality.\nThis argument comes too late. At trial, counsel for Price Waterhouse twice assured the court that\nhe did not question Dr. Fiske\xe2\x80\x99s expertise (App. 25) and failed to challenge the legitimacy of her\ndiscipline. Without contradiction from Price Waterhouse, Fiske testified that she discerned sex\nstereotyping in the partners\xe2\x80\x99 evaluations of Hopkins and she further explained that it was part of\nher business to identify stereotyping in written documents. Id., at 64. We are not inclined to accept\npetitioner\xe2\x80\x99s belated and unsubstantiated characterization of Dr. Fiske\xe2\x80\x99s testimony as \xe2\x80\x9cgossamer\nevidence\xe2\x80\x9d (Brief for Petitioner 20) based only on \xe2\x80\x9cintuitive hunches\xe2\x80\x9d (id., at 44) and of her\ndetection of sex stereotyping as \xe2\x80\x9cintuitively divined\xe2\x80\x9d (id., at 43).\n...\nIndeed, we are tempted to say that Dr. Fiske\xe2\x80\x99s expert testimony was merely icing on Hopkins\xe2\x80\x99\ncake. It takes no special training to discern sex stereotyping in a description of an aggressive female\nemployee as requiring \xe2\x80\x9ca course at charm school.\xe2\x80\x9d Nor, turning to Thomas Beyer\xe2\x80\x99s memorable\nadvice to Hopkins, does it require expertise in psychology to know that, if an employee\xe2\x80\x99s flawed\n\xe2\x80\x9cinterpersonal skills\xe2\x80\x9d can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is\n19\n\n\x0cthe employee\xe2\x80\x99s sex and not her interpersonal skills that has drawn the criticism\nPrice Waterhouse also charges that Hopkins produced no evidence that sex stereotyping played a\nrole in the decision to place her candidacy on hold. As we have stressed, however, Hopkins showed\nthat the partnership solicited evaluations from all of the firm\xe2\x80\x99s partners; that it generally relied very\nheavily on such evaluations in making its decision; that some of the partners\xe2\x80\x99 comments were the\nproduct of stereotyping; and that the firm in no way disclaimed reliance on those particular\ncomments, either in Hopkins\xe2\x80\x99 case or in the past. Certainly a plausible\xe2\x80\x94and, one might say,\ninevitable\xe2\x80\x94conclusion to draw from this set of circumstances is that the Policy Board in making\nits decision did in fact take into account all of the partners\xe2\x80\x99 comments, including the comments\nthat were motivated by stereotypical notions about women\xe2\x80\x99s proper deportment.\n[The Supreme Court remanded the case so that the court of appeals could reevaluate the case\nconsistent with the standard the Supreme Court established].\nNotes and Questions\n1.\nPrice Waterhouse was a plurality opinion. However, six justices (the plurality and two\nseparate concurrences) \xe2\x80\x9cagreed that [the conduct about which Ann Hopkins complained was]\nindicative of gender discrimination. . . .\xe2\x80\x9d Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011);\nsee also Hively v. Ivy Tech Community College, 853 F.3d 339, 346 & n.2 (7th Cir. 2017) (en banc)\n(noting that six justices agreed \xe2\x80\x9cthat the conduct about which Hopkins complained could support\na finding of sex discrimination for purposes of Title VII\xe2\x80\x9d). \xe2\x80\x9cSex\xe2\x80\x9d refers to \xe2\x80\x9can individual\'s\nanatomical and biological characteristics,\xe2\x80\x9d while \xe2\x80\x9cgender\xe2\x80\x9d refers to \xe2\x80\x9csocially-constructed norms\nassociated with a person\'s sex.\xe2\x80\x9d See Smith v. City of Salem, Ohio, 378 F.3d 566, 573 (6th Cir. 2004)\n(citations omitted). Price Waterhouse held that \xe2\x80\x9cTitle VII barred not just discrimination because\nof biological sex, but also gender stereotyping\xe2\x80\x94failing to act or appear according to expectations\ndefined by gender.\xe2\x80\x9d Glenn, 663 F.3d at 1316. For purposes of Title VII, courts use the terms \xe2\x80\x9csex\xe2\x80\x9d\nand \xe2\x80\x9cgender\xe2\x80\x9d interchangeably and discrimination on either basis is unlawful under the statute. See\nHively, 853 F.3d at 343 & n.1 (\xe2\x80\x9cMany courts, including the Supreme Court, appear to have used\n\xe2\x80\x9csex\xe2\x80\x9d and \xe2\x80\x9cgender\xe2\x80\x9d synonymously.\xe2\x80\x9d).\n2.\nDoes Price Waterhouse overrule DeSantis at least to the extent of the Ninth Circuit\xe2\x80\x99s\nholding that discrimination against men because of their effeminacy does not violate Title VII? In\na post-Price Waterhouse case, the Ninth Circuit held that it does. In Nichols v. Azteca Restaurant\nEnterprises, Inc., 256 F.3d 864 (9th Cir. 2001), the plaintiff had been derided because \xe2\x80\x9che carried\nhis tray like a woman,\xe2\x80\x9d refused to have sex with a female coworker and was frequently called\nsexually derogatory names (e.g., \xe2\x80\x9cfucking female whore\xe2\x80\x9d). See id. at 870, 874-75. The court\noverruled DeSantis to the extent that case conflicted with Price Waterhouse. It explained that the\nSupreme Court\xe2\x80\x99s holding that Title VII is violated when an employer discriminates against a\nwoman for acting insufficiently feminine \xe2\x80\x9capplies with equal force to a man who is discriminated\nagainst for acting too feminine.\xe2\x80\x9d See id. at 874.\n20\n\n\x0c2.\n\nSame-Sex Harassment\n\nNOTE ON ONCALE\nOncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), is the second case that has\ngreatly influenced the interpretation of Title VII\xe2\x80\x99s prohibition of \xe2\x80\x9cdiscrimination because of sex\xe2\x80\x9d\nand the rights of LGBT individuals under the statute. In Oncale, the Supreme Court resolved a\ncircuit split regarding whether same-sex sexual harassment was actionable under Title VII. The\nplaintiff in Oncale was male and worked as a roustabout with an all-male crew. He was subjected\nto pervasive and severe abuse carried out by coworkers, including a sexual assault. Relying on\ncircuit precedent, the district court dismissed his claim and the U.S. Court of Appeals for the Fifth\nCircuit affirmed.\nPrior to Oncale, courts addressed the issue of same-sex sexual harassment in one of three\nways. Some, like the Fifth Circuit, which decided Oncale, held that same-sex sexual harassment\nwas never cognizable under Title VII. Other courts allowed such claims only if the plaintiff could\nprove the harasser was homosexual and thus the harassing conduct was motivated by sexual desire.\nFinally, other courts suggested that such claims were viable as long as the harasser\xe2\x80\x99s conduct was\nsexual in nature.\nThe Supreme Court held that same-sex sexual harassment was cognizable under Title VII\nas long as the harassment occurred \xe2\x80\x9cbecause of sex.\xe2\x80\x9d Writing for a unanimous Court, Justice Scalia\nexplained that Title VII\xe2\x80\x99s proscription against sex discrimination protects women and men and\n\xe2\x80\x9cevinces a congressional intent to strike at the entire spectrum of disparate treatment of men and\nwomen.\xe2\x80\x9d Id. at 78. He acknowledged that \xe2\x80\x9cmale-on-male sexual harassment in the workplace was\nnot the principal evil Congress was concerned with when it enacted Title VII.\xe2\x80\x9d Id. at 79. However,\nhe continued, \xe2\x80\x9cstatutory prohibitions often go beyond the principal evil to cover reasonably\ncomparable evils, and it is ultimately the provisions of our laws rather than the principal concerns\nof our legislators by which we are governed.\xe2\x80\x9d Id. at 79-80 (emphasis added).\nThe Court suggested three ways in which a plaintiff alleging same-sex sexual harassment\nmight show the discrimination was because of sex. First, courts and juries may draw such an\ninference where \xe2\x80\x9cthere [was] credible evidence that the harasser was homosexual.\xe2\x80\x9d Second, \xe2\x80\x9ca\ntrier of fact might reasonably find [sex] discrimination . . . if a female victim is harassed in such\nsex-specific and derogatory terms by another woman as to make it clear that the harasser is\nmotivated by general hostility to the presence of women in the workplace.\xe2\x80\x9d Finally, \xe2\x80\x9c[a] same-sex\nharassment plaintiff may also, of course, offer direct comparative evidence about how the alleged\nharasser treated members of both sexes in a mixed-sex workplace.\xe2\x80\x9d According to the Court,\n[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the\nconduct at issue constituted \xe2\x80\x9cdiscrimina[tion] ... because of ... sex.\xe2\x80\x9d Id. at 80-81.\nOncale has often been cited for the proposition that Title VII is not limited to an\ninterpretation anticipated by legislators in 1964 when the statute was enacted. See e.g., Hively, 853\nF.3d at 345 (\xe2\x80\x9cThe Court [in Oncale] could not have been clearer: the fact that the enacting Congress\n21\n\n\x0cmay not have anticipated a particular application of the law cannot stand in the way of the\nprovisions of the law that are on the books. It is therefore neither here nor there that the Congress\xe2\x80\x9d\nthat prohibited sex discrimination under Title VII \xe2\x80\x9cmay not have realized or understood the full\nscope of the words it chose.\xe2\x80\x9d)\nMoreover, Oncale has also been instrumental to LGBT employees alleging sex\ndiscrimination on the basis of sex stereotyping. Although the Supreme Court set forth three bases\nfor showing discrimination is because of sex, the courts that have reached the issue have \xe2\x80\x9cheld that\n[these] paths are illustrative, not exhaustive.\xe2\x80\x9d EEOC v. Boh Bros. Construction Co., 731 F.3d 444,\n455 & n.6 (5th Cir. 2013) (en banc) (citing cases from other circuits). As you will see in the\nmaterials that follow, LGBT plaintiffs alleging sex discrimination, including harassment, have\nrelied on evidence of sex stereotyping to show that alleged discrimination was because of sex.\n\nC.\n\nStereotyping and Sexual Orientation\n\nAn issue that has arisen post-Price Waterhouse that has affected claims by gay and lesbian\nindividuals is determining what constitutes evidence of \xe2\x80\x9csex stereotyping\xe2\x80\x9d or \xe2\x80\x9cgender nonconforming behavior\xe2\x80\x9d for purposes of Title VII. Ann Hopkins was discriminated against because,\naccording to her employers, she failed to act and appear in ways typically associated with the ways\nin which women should act and appear. To allege a viable sex discrimination claim, must a plaintiff\nin Hopkins\xe2\x80\x99s position show that the discrimination was based on the type of observable gender\nnon-conforming behavior at issue in Price Waterhouse? If so, what does that mean for gay and\nlesbian employees? Ann Hopkins was not a lesbian, but she was considered to be \xe2\x80\x9cmacho\xe2\x80\x9d by her\nemployers. Should it have affected her claim had she been a macho lesbian?\n\xe2\x80\x9cMachoism\xe2\x80\x9d aside, should lesbianism alone have sufficed as constituting the type of gender\nnon-conforming behavior an employer is prohibited from considering when making employment\ndecisions? See Matthew W. Green Jr., Same-Sex and Immutable Traits: Why Obergefell v. Hodges\nClears a Path to Protecting Gay and Lesbian Employees From Workplace Discrimination Under\nTitle VII, 20 J. Gender Race & Justice 1, 24-25 (2017) (noting that \xe2\x80\x9cnumerous scholars have\nrecognized that one of the prime motivations for discrimination against gays and lesbians is\ndiscomfort with the manner in which homosexuality departs from traditional gender roles . . .\xe2\x80\x9d);\nsee also Brian Soucek, Perceived Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (\xe2\x80\x9cFollowing\nPrice Waterhouse to its logical conclusion would appear to require that sexual orientation be\nbrought, along with the rest of the spectrum of gender stereotypes, under the protective umbrella\nof Title VII.\xe2\x80\x9d).\nThe case set forth immediately below and the explanatory material that follow address\nthese issues. They attempt to provide an overview of the way courts have treated claims by\nemployees who allege discrimination because of their gender non-conformity and who are LGB\nor are perceived to be.\n\n22\n\n\x0cBrian D. Prowel v. Wise Business Forms, Inc.\n579 F.3d 285 (3rd Cir. 2009).\n\nOPINION OF THE COURT\nHardiman, Circuit Judge.\nBrian Prowel appeals the District Court\xe2\x80\x99s summary judgment in favor of his former employer,\nWise Business Forms, Inc. Prowel sued under Title VII of the Civil Rights Act of 1964 and the\nPennsylvania Human Relations Act, alleging that Wise harassed and retaliated against him because\nof sex and religion. The principal issue on appeal is whether Prowel has marshaled sufficient facts\nfor his claim of \xe2\x80\x9cgender stereotyping\xe2\x80\x9d discrimination to be submitted to a jury. We also consider\nwhether the District Court erred in granting summary judgment to Wise on Prowel\xe2\x80\x99s religious\ndiscrimination claim.\n\n...\nII.\nProwel began working for Wise in July 1991. A producer and distributor of business forms, Wise\nemployed approximately 145 workers at its facility in Butler, Pennsylvania. From 1997 until his\ntermination, Prowel operated a machine called a nale encoder, which encodes numbers and\norganizes business forms. On December 13, 2004, after 13 years with the company, Wise informed\nProwel that it was laying him off for lack of work.\n\nA.\nProwel\xe2\x80\x99s most substantial claim is that Wise harassed and retaliated against him because of sex.\nThe theory of sex discrimination Prowel advances is known as a \xe2\x80\x9cgender stereotyping\xe2\x80\x9d claim,\nwhich was first recognized by the Supreme Court as a viable cause of action in Price Waterhouse\nv. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).\nProwel identifies himself as an effeminate man and believes that his mannerisms caused him not\nto \xe2\x80\x9cfit in\xe2\x80\x9d with the other men at Wise. Prowel described the \xe2\x80\x9cgenuine stereotypical male\xe2\x80\x9d at the\nplant as follows:\n[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of\nthe guys there hunted. Most of the guys there fished. If they drank, they drank\nbeer, they didn\xe2\x80\x99t drink gin and tonic. Just you know, all into football, sports, all\nthat kind of stuff, everything I wasn\xe2\x80\x99t.\n23\n\n\x0cIn stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not\ncurse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed\nhis nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to\nshake his foot \xe2\x80\x9cthe way a woman would sit\xe2\x80\x9d; walked and carried himself in an effeminate manner;\ndrove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music,\ninterior design, and decor; and pushed the buttons on the nale encoder with \xe2\x80\x9cpizzazz.\xe2\x80\x9d\nSome of Prowel\xe2\x80\x99s co-workers reacted negatively to his demeanor and appearance. During the last\ntwo years of his employment at Wise, a female co-worker frequently called Prowel \xe2\x80\x9cPrincess.\xe2\x80\x9d In\na similar vein, co-workers made comments such as: \xe2\x80\x9cDid you see what Rosebud was wearing?\xe2\x80\x9d;\n\xe2\x80\x9cDid you see Rosebud sitting there with his legs crossed, filing his nails?\xe2\x80\x9d; and \xe2\x80\x9cLook at the way\nhe walks.\xe2\x80\x9d\nProwel also testified that he is homosexual. At some point prior to November 1997, Prowel was\n\xe2\x80\x9couted\xe2\x80\x9d at work when a newspaper clipping of a \xe2\x80\x9cman-seeking-man\xe2\x80\x9d ad was left at his workstation\nwith a note that read: \xe2\x80\x9cWhy don\xe2\x80\x99t you give him a call, big boy.\xe2\x80\x9d Prowel reported the incident to\ntwo management-level personnel and asked that something be done. The culprit was never\nidentified, however.\nAfter Prowel was outed, some of his co-workers began causing problems for him, subjecting him\nto verbal and written attacks during the last seven years of his tenure at Wise. In addition to the\nnicknames \xe2\x80\x9cPrincess\xe2\x80\x9d and \xe2\x80\x9cRosebud,\xe2\x80\x9d a female co-worker called him \xe2\x80\x9cfag\xe2\x80\x9d and said: \xe2\x80\x9cListen,\nfaggot, I don\xe2\x80\x99t have to put up with this from you.\xe2\x80\x9d Prowel reported this to his shift supervisor but\nreceived no response.\nAt some point during the last two years of Prowel\xe2\x80\x99s employment, a pink, light-up, feather tiara\nwith a package of lubricant jelly was left on his nale encoder. The items were removed after Prowel\ncomplained to Henry Nolan, the shift supervisor at that time. On March 24, 2004, as Prowel entered\nthe plant, he overheard a co-worker state: \xe2\x80\x9cI hate him. They should shoot all the fags.\xe2\x80\x9d Prowel\nreported this remark to Nolan, who said he would look into it. Prowel also overheard conversations\nbetween co-workers, one of whom was a supervisor, who disapproved of how he lived his life.\nFinally, messages began to appear on the wall of the men\xe2\x80\x99s bathroom, claiming Prowel had AIDS\nand engaged in sexual relations with male co-workers. After Prowel complained, the company\nrepainted the restroom.\nB.\nIn addition to the harassment Prowel allegedly experienced because of his sex, he also claims that\nhe was discriminated against because of religion. Specifically, Prowel argues that his conduct did\nnot conform to the company\'s religious beliefs. When asked at his deposition what those religious\nbeliefs were, Prowel responded: \xe2\x80\x9ca man should not lay with another man.\xe2\x80\x9d\nFor a few months during the spring of 2004, Prowel found anonymous prayer notes on his work\nmachine on a daily basis. Prowel also found messages indicating he was a sinner for the way he\n24\n\n\x0clived his life. Additionally, he found a note stating: \xe2\x80\x9cRosebud will burn in hell.\xe2\x80\x9d Prowel attributed\nthese notes and comments to Michael Croyle, a Christian employee who refused to speak to\nProwel. Moreover, Prowel testified in his deposition that nothing was left on his machine after\nCroyle left the company.\nAnother co-worker, Thomas Bowser, stated that he did not approve of how Prowel lived his life.\nProwel testified that Bowser brought religious pamphlets to work that stated \xe2\x80\x9cthe end is coming\xe2\x80\x9d\nand \xe2\x80\x9chave you come clean with your maker?\xe2\x80\x9d\nC.\nProwel alleges that his co-workers shunned him and his work environment became so stressful\nthat he had to stop his car on the way to work to vomit. At some point in 2004, Prowel became\nincreasingly dissatisfied with his work assignments and pay. Prowel believed he was asked to\nperform more varied tasks than other nale encoder operators, but was not compensated fairly for\nthese extra tasks, even though work piled up on his nale encoder.\nIn April 2004, Prowel considered suing Wise and stated his intentions to four non-management\npersonnel, asking them to testify on his behalf. Prowel allegedly told his colleagues that the lawsuit\nwould be based on harassment for not \xe2\x80\x9cfitting in\xe2\x80\x9d; he did not say anything about being harassed\nbecause of his homosexuality. These four colleagues complained to management that Prowel was\nbothering them.\nOn May 6, 2004, General Manager Jeff Straub convened a meeting with Prowel and supervisors\nNolan and John Hodak to discuss Prowel\xe2\x80\x99s concern that he was doing more work for less money\nthan other nale encoder operators. Prowel\xe2\x80\x99s compensation and workload were discussed, but the\nparties did not reach agreement on those issues. Straub then asked Prowel if he had approached\nemployees to testify for him in a lawsuit, and Prowel replied that he had not done so. Prowel has\nsince conceded that he did approach other employees in this regard.\nOn December 13, 2004, Prowel was summoned to meet with his supervisors, who informed him\nthat he was terminated effective immediately for lack of work.\n\nIII.\nAfter exhausting his administrative remedies before the Equal Employment Opportunity\nCommission, Prowel sued Wise in the United States District Court for the Western District of\nPennsylvania, alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000e,\net seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons.Stat. \xc2\xa7 951, et seq. (PHRA).\nProwel alleged harassment and wrongful termination because of sex. . . . Following discovery,\nWise moved for summary judgment and the District Court granted the company\xe2\x80\x99s motion in its\nentirety. As relevant to this appeal, the District Court held that Prowel\xe2\x80\x99s suit was merely a claim\nfor sexual orientation discrimination-which is not cognizable under Title VII-that he repackaged\nas a gender stereotyping claim in an attempt to avoid summary judgment. Prowel\'s religious\n25\n\n\x0cdiscrimination claim failed for the same reason. As for Prowel\'s retaliation claim, the District Court\nheld that Prowel had a good faith belief that he had engaged in protected activity under Title VII,\nbut that his belief was not objectively reasonable given that his complaint was actually based on\nsexual orientation discrimination. Prowel filed this timely appeal.\n\nIV.\nIn evaluating Wise\xe2\x80\x99s motion for summary judgment, the District Court properly focused on our\ndecision in Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001), wherein\nwe stated: \xe2\x80\x9cTitle VII does not prohibit discrimination based on sexual orientation. Congress has\nrepeatedly rejected legislation that would have extended Title VII to cover sexual orientation.\xe2\x80\x9d Id.\nat 261 (citations omitted). This does not mean, however, that a homosexual individual is barred\nfrom bringing a sex discrimination claim under Title VII, which plainly prohibits discrimination\n\xe2\x80\x9cbecause of sex.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-2(a). As the District Court noted, \xe2\x80\x9conce a plaintiff shows that\nharassment is motivated by sex, it is no defense that it may also have been motivated by anti-gay\nanimus.\xe2\x80\x9d Dist. Ct. Op. at 6 (citing Bibby, 260 F.3d at 265). In sum, \xe2\x80\x9c[w]hatever the sexual\norientation of a plaintiff bringing a same-sex sexual harassment claim, that plaintiff is required to\ndemonstrate that the harassment was directed at him or her because of his or her sex.\xe2\x80\x9d Bibby, 260\nF.3d at 265.\nBoth Prowel and Wise rely heavily upon Bibby. Wise claims this appeal is indistinguishable from\nBibby and therefore we should affirm its summary judgment for the same reason we affirmed\nsummary judgment in Bibby. Prowel counters that reversal is required here because gender\nstereotyping was not at issue in Bibby. As we shall explain, Bibby does not dictate the result in this\nappeal. Because it guides our analysis, however, we shall review it in some detail.\nJohn Bibby, a homosexual man, was a long-time employee of the Philadelphia Coca Cola Bottling\nCompany. Id. at 259. The company terminated Bibby after he sought sick leave, but ultimately\nreinstated him. Id. After Bibby\xe2\x80\x99s reinstatement, he alleged that he was assaulted and harmed by\nco-workers and supervisors when he was subjected to crude remarks and derogatory sexual graffiti\nin the bathrooms. Id. at 260.\nBibby filed a complaint with the Philadelphia Commission on Human Relations (PCHR), alleging\nsexual orientation discrimination. Id. After the PCHR issued a right-to-sue letter, Bibby sued in\nfederal court alleging, inter alia, sexual harassment in violation of Title VII. Id. The district court\ngranted summary judgment for the company because Bibby was harassed not \xe2\x80\x9cbecause of sex,\xe2\x80\x9d\nbut rather because of his sexual orientation, which is not cognizable under Title VII. Id. at 260-61.\nOn appeal, this Court affirmed, holding that Bibby presented insufficient evidence to support a\nclaim of same-sex harassment under Title VII. Despite acknowledging that harassment based on\nsexual orientation has no place in a just society, we explained that Congress chose not to include\nsexual orientation harassment in Title VII. Id. at 261, 265. Nevertheless, we stated that employees\nmay-consistent with the Supreme Court\xe2\x80\x99s decision in Price Waterhouse-raise a Title VII gender\nstereotyping claim, provided they can demonstrate that \xe2\x80\x9cthe[ir] harasser was acting to punish\n26\n\n\x0c[their] noncompliance with gender stereotypes.\xe2\x80\x9d Id. at 264; accord Vickers v. Fairfield Med. Ctr.,\n453 F.3d 757, 762 (6th Cir.2006); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th\nCir.2001); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir.1999). Because\nBibby did not claim gender stereotyping, however, he could not prevail on that theory. We also\nconcluded, in dicta, that even had we construed Bibby\xe2\x80\x99s claim to involve gender stereotyping, he\ndid not marshal sufficient evidence to withstand summary judgment on that claim. Bibby, 260 F.3d\nat 264-65.\nIn light of the foregoing discussion, we disagree with both parties\xe2\x80\x99 arguments that Bibby dictates\nthe outcome of this case. Bibby does not carry the day for Wise because in that case, the plaintiff\nfailed to raise a gender stereotyping claim as Prowel has done here. Contrary to Prowel\xe2\x80\x99s argument,\nhowever, Bibby does not require that we reverse the District Court\xe2\x80\x99s summary judgment merely\nbecause we stated that a gender stereotyping claim is cognizable under Title VII; such has been\nthe case since the Supreme Court\xe2\x80\x99s decision in Price Waterhouse. Instead, we must consider\nwhether the record, when viewed in the light most favorable to Prowel, contains sufficient facts\nfrom which a reasonable jury could conclude that he was harassed and/or retaliated against\n\xe2\x80\x9cbecause of sex.\xe2\x80\x9d\n[The court set forth the holding and rationale of Price Waterhouse.]\nLike our decision in Bibby, the Supreme Court\xe2\x80\x99s decision in Price Waterhouse provides the\napplicable legal framework, but does not resolve this case. Unlike in Price Waterhouse-where\nHopkins\xe2\x80\x99s sexual orientation was not at issue-here there is no dispute that Prowel is homosexual.\nThe difficult question, therefore, is whether the harassment he suffered at Wise was because of his\nhomosexuality, his effeminacy, or both.\nAs this appeal demonstrates, the line between sexual orientation discrimination and discrimination\n\xe2\x80\x9cbecause of sex\xe2\x80\x9d can be difficult to draw. In granting summary judgment for Wise, the District\nCourt found that Prowel\xe2\x80\x99s claim fell clearly on one side of the line, holding that Prowel\xe2\x80\x99s sex\ndiscrimination claim was an artfully-pleaded claim of sexual orientation discrimination. However,\nour analysis-viewing the facts and inferences in favor of Prowel-leads us to conclude that the\nrecord is ambiguous on this dispositive question. Accordingly, Prowel\xe2\x80\x99s gender stereotyping claim\nmust be submitted to a jury.\nWise claims it laid off Prowel because the company decided to reduce the number of nale encoder\noperators from three to two. This claim is not without support in the record. After Prowel was laid\noff, no one was hired to operate the nale encoder during his shift. Moreover, market conditions\ncaused Wise to lay off 44 employees at its Pennsylvania facility between 2001 and September\n2006, and the company\xe2\x80\x99s workforce shrank from 212 in 2001 to 145 in 2008. General Manager\nStraub testified that in determining which nale encoder operator to lay off, he considered various\nfactors, including customer service, productivity, cooperativeness, willingness to perform other\ntasks (the frequency with which employees complained about working on other machines), future\nadvancement opportunities, and cost. According to Wise, Prowel was laid off because: comments\non his daily production reports reflected an uncooperative and insubordinate attitude; he was the\nhighest paid operator; he complained when asked to work on different machines; and he did not\n27\n\n\x0cwork to the best of his ability when operating the other machines.\nProwel asserts that these reasons were pretextual and he was terminated because of his complaints\nto management about harassment and his discussions with co-workers regarding a potential lawsuit\nagainst the company. In this respect, the record indicates that Prowel\xe2\x80\x99s work compared favorably\nto the other two nale encoder operators. Specifically, Prowel worked on other equipment fifty-four\ntimes during the last half of 2004 while a co-worker did so just once; Prowel also ran more jobs\nand impressions per hour than that same co-worker; and Prowel\xe2\x80\x99s attendance was significantly\nbetter than the third nale encoder operator. Finally, although Wise laid off forty-four workers\nbetween 2001 and 2006, it laid off no one in 2003, only Prowel in 2004, and just two in 2005.\nAlthough Prowel is unaware what role his sexual orientation played in his termination, he alleges\nthat he was harassed and retaliated against not because of the quality of his work, but rather because\nhe failed to conform to gender stereotypes.\nThe record demonstrates that Prowel has adduced evidence of harassment based on gender\nstereotypes. He acknowledged that he has a high voice and walks in an effeminate manner. In\ncontrast with the typical male at Wise, Prowel testified that he: did not curse and was very wellgroomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a\ntendency to shake his foot \xe2\x80\x9cthe way a woman would sit.\xe2\x80\x9d Prowel also discussed things like art,\nmusic, interior design, and decor, and pushed the buttons on his nale encoder with \xe2\x80\x9cpizzazz.\xe2\x80\x9d\nProwel\xe2\x80\x99s effeminate traits did not go unnoticed by his co-workers, who commented: \xe2\x80\x9cDid you see\nwhat Rosebud was wearing?\xe2\x80\x9d; \xe2\x80\x9cDid you see Rosebud sitting there with his legs crossed, filing his\nnails?\xe2\x80\x9d; and \xe2\x80\x9cLook at the way he walks.\xe2\x80\x9d Finally, a co-worker deposited a feathered, pink tiara at\nProwel\xe2\x80\x99s workstation. When the aforementioned facts are considered in the light most favorable\nto Prowel, they constitute sufficient evidence of gender stereotyping harassment-namely, Prowel\nwas harassed because he did not conform to Wise\xe2\x80\x99s vision of how a man should look, speak, and\nact-rather than harassment based solely on his sexual orientation.\nTo be sure, the District Court correctly noted that the record is replete with evidence of harassment\nmotivated by Prowel\xe2\x80\x99s sexual orientation. Thus, it is possible that the harassment Prowel alleges\nwas because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the\npossibility that Prowel was also harassed for his failure to conform to gender stereotypes. See 42\nU.S.C. \xc2\xa7 2000e-2(m) (\xe2\x80\x9c[A]n unlawful employment practice is established when the complaining\nparty demonstrates that ... sex ... was a motivating factor for any employment practice, even though\nother factors also motivated the practice.\xe2\x80\x9d). Because both scenarios are plausible, the case presents\na question of fact for the jury and is not appropriate for summary judgment.\nIn support of the District Court\xe2\x80\x99s summary judgment, Wise argues persuasively that every case of\nsexual orientation discrimination cannot translate into a triable case of gender stereotyping\ndiscrimination, which would contradict Congress\xe2\x80\x99s decision not to make sexual orientation\ndiscrimination cognizable under Title VII. Nevertheless, Wise cannot persuasively argue that\nbecause Prowel is homosexual, he is precluded from bringing a gender stereotyping claim. There\nis no basis in the statutory or case law to support the notion that an effeminate heterosexual man\ncan bring a gender stereotyping claim while an effeminate homosexual man may not. As long as\nthe employee-regardless of his or her sexual orientation-marshals sufficient evidence such that a\n28\n\n\x0creasonable jury could conclude that harassment or discrimination occurred \xe2\x80\x9cbecause of sex,\xe2\x80\x9d the\ncase is not appropriate for summary judgment. For the reasons we have articulated, Prowel has\nadduced sufficient evidence to submit this claim to a jury.\nV.\nProwel also argues that the District Court erred when it granted Wise summary judgment on his\nclaim of religious harassment. To survive summary judgment on this claim, Prowel must show:\n(1) intentional harassment because of religion, that (2) was severe or pervasive, and (3)\ndetrimentally affected him, and (4) would detrimentally affect a reasonable person of the same\nreligion in that position, and (5) the existence of respondeat superior liability. Abramson, 260 F.3d\nat 276-77.\nOur review of the record leads to the conclusion that Prowel cannot satisfy the first essential\nelement of his cause of action. Prowel admits that no one at Wise harassed him based\non his religious beliefs. Rather, Prowel contends that he was harassed for failing to conform\nto Wise\'s religious beliefs. Title VII seeks to protect employees not only from discrimination\nagainst them on the basis of their religious beliefs, but also from forced religious\nconformity. Harris v. Forklift Sys., Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295\n(1993); Abramson, 260 F.3d at 277. Nevertheless, when asked to identify which of Wise\'s beliefs\nto which he failed to conform, Prowel could identify just one: \xe2\x80\x9cthat a man should not lay with\nanother man.\xe2\x80\x9d Likewise, in response to Wise\'s statement of undisputed material facts, Prowel\nadmitted: \xe2\x80\x9cthe only way in which [he] failed to conform to his co-workers\' religious beliefs was\nby virtue of his status as a gay man.\xe2\x80\x9d Finally, over a month after Wise moved for summary\njudgment, Prowel averred that he suffered religious harassment because: \xe2\x80\x9cI am a gay male, which\nstatus several of my co-workers considered to be contrary to being a good Christian.\xe2\x80\x9d\nProwel\'s identification of this single \xe2\x80\x9creligious\xe2\x80\x9d belief leads ineluctably to the conclusion that he\nwas harassed not \xe2\x80\x9cbecause of religion,\xe2\x80\x9d but because of his sexual orientation. Given Congress\'s\nrepeated rejection of legislation that would have extended Title VII to cover sexual\norientation, see Bibby, 260 F.3d at 261, we cannot accept Prowel\'s de facto invitation to hold that\nhe was discriminated against \xe2\x80\x9cbecause of religion\xe2\x80\x9d merely by virtue of his homosexuality.\nIn support of his argument that the District Court should not have granted Wise summary judgment\non his religious harassment claim, Prowel relies upon Erdmann v. Tranquility Inc., 155 F. Supp.2d\n1152 (N.D. Cal. 2001). In Erdmann, a homosexual employee claimed religious discrimination\nbecause his boss insisted that he become heterosexual. Id. at 1156. Wholly apart from the fact that\nit is not binding precedent, Erdmann cannot bear the weight Prowel places upon it. Unlike Prowel,\nErdmann did not claim Title VII religious harassment based exclusively upon his homosexual\nstatus. Rather, the employer in that case insisted that Erdmann convert to the employer\'s faith and\nlead the company\'s daily prayer service. Id. at 1158. Prowel has not cited any facts supporting\nanalogous religious coercion.\nIn sum, the same principle that requires Prowel\'s gender stereotyping claim to be submitted to the\njury requires that his religious harassment claim fail at this stage. As explained above, Prowel\'s\ngender stereotyping claim is not limited to, or coextensive with, a claim of sexual orientation\n29\n\n\x0charassment. Accordingly, the jury will have to determine the basis of the harassment. By contrast,\nProwel\'s religious harassment claim is based entirely upon his status as a gay man. Because\nProwel\'s claim was a repackaged claim for sexual orientation discrimination-which is not\ncognizable under Title VII-we hold that the District Court did not err in granting Wise summary\njudgment on that claim.\nVI.\nFor the foregoing reasons, we will vacate the judgment of the District Court . . . and will remand\nfor further proceedings consistent with this opinion.\nNotes and Questions\n1.\nSexual Orientation and Title VII: Every circuit court of appeals that has reached the\nissue, except one, has held that Title VII does not protect against sexual orientation discrimination.\nSee Hively v. Ivy-Tech Comm. Coll., 853 F.3d 339, 341-42 (7th Cir. 2017) (en banc) (collecting\ncases). The court in Prowel is in accord but explains that plaintiffs may \xe2\x80\x9craise a gender stereotyping\nclaim\xe2\x80\x9d under Title VII \xe2\x80\x9cprovided they can demonstrate that the[ir] harasser was acting to punish\nnoncompliance with gender stereotypes.\xe2\x80\x9d Accordingly, the court stated that the dispositive\nquestion is whether Prowel was harassed because of his gender nonconformity, his homosexuality\nor both. The court opined that the record was unclear on those issues and thus was for a jury to\ndecide. Do you agree with the court that the motivations underlying Prowel\xe2\x80\x99s harassers were\nunclear?\n2.\nSexual Orientation vs. Gender Nonconformity (Status v. Conduct):\nProwel demonstrates one approach courts have taken to analyze claims involving sex stereotyping\nthat are asserted by individuals who are LGB or are perceived to be. In a now vacated opinion, a\npanel of the U.S. Court of Appeals for the Seventh Circuit recognized that courts have \xe2\x80\x9cwith\nlimited success, tr[ied] to figure out how to draw the line between gender nonconformity\ndiscrimination, which can form the basis of a legal claim based on sex stereotyping and sexual\norientation discrimination, which cannot. See Hively v. Ivy-Tech Comm. Coll., 830 F.3d 698,\nvacated on other grounds by 853 F.3d 339, 346 & n.2 (7th Cir. 2017) (en banc). For instance, some\ncourts have rejected claims of sex discrimination if they believe that the allegations that indicate\nsexual orientation discrimination outweigh those that indicate the discrimination occurred because\nof sex stereotyping. See e.g., Christiansen v. Omnicom Group, Inc., 167 F. Supp.3d 598, 618-21\n(S.D.N.Y. 2016), rev\xe2\x80\x99d, 852 F.3d 195, 201 (2nd Cir. 2017) (although harasser referred to plaintiff\nas effeminate, the harasser showed multiple examples of anti-gay animus). Other courts have\ndrawn a line although allegations of sex stereotyping and sexual orientation discrimination blur.\nSee e.g., Burnett v. Union RR Co., No. 17-1012017 WL 2731284 (W.D. Pa. June 26, 2017) (finding\nthat plaintiff had sufficiently alleged that he had been \xe2\x80\x9csubjected to a hostile work environment\nbecause of gender nonconformity\xe2\x80\x9d after, among other things, repeatedly being called \xe2\x80\x9cfag,\xe2\x80\x9d\n\xe2\x80\x9cbutthole Burnett,\xe2\x80\x9d \xe2\x80\x9chot butt fagot\xe2\x80\x9d and being asked whether he \xe2\x80\x9cwas taking it up the ass\xe2\x80\x9d).\n30\n\n\x0cSeveral courts, however, have concluded that it is impossible to draw lines in this area and\nhave declined to try to do so. In other words, for LGB individuals, their sexual orientation, itself,\nis gender nonconforming and discrimination on that basis is actionable under Title VII. See e.g.,\nWinstead v. Lafayette Cnty. Bd. of Cnty. Comm\'rs, 197 F. Supp.3d 1334, 1346 (N.D. Fla. 2016)\n(\xe2\x80\x9c[G]ay people, simply by identifying themselves as gay, are violating the ultimate gender\nstereotype\xe2\x80\x94heterosexual attraction. . . . When a \xe2\x80\x9ctraditionally masculine\xe2\x80\x9d gay man is fired because\nhe is gay, that firing is no less because of sex than when an \xe2\x80\x9ceffeminate\xe2\x80\x9d gay man is fired). See\nTerveer v. Billington, 34 F. Supp.3d 100 (D. D.C. 2014) (denying employer\xe2\x80\x99s motion to dismiss;\n\xe2\x80\x9cPlaintiff has alleged that he is \xe2\x80\x9ca homosexual male whose sexual orientation is not consistent with\nthe Defendant\xe2\x80\x99s perception of acceptable gender roles); Heller v. Columbia Edgewater Country\nClub, 195 F. Supp.2d 1212, 1224 (D. Ore. 2002) (denying employer\xe2\x80\x99s motion for summary\njudgment as a jury could find that the plaintiff (a woman) was harassed and discharged because of\na failure to conform to how a woman ought to behave; plaintiff was attracted to other women and\nher supervisor believed that she should be attracted to and date men).\nStill, LGB plaintiffs who fail to conform to gender norms in appearance, mannerisms and\nbehavior in the workplace appear to have greater success pursuing sex discrimination claims based\non sex stereotypes than have gender conforming LGB individuals. See e.g., Evans v. Georgia\nRegional Hosp., 850 F.3d 1248, 1254 (11th Cir 2017) (holding that Title VII does not protect\nagainst sexual orientation discrimination, but holding that the plaintiff should be allowed leave to\namend her complaint to allege that her \xe2\x80\x9cdecision to present herself in a masculine manner\xe2\x80\x9d resulted\nin adverse employment actions); Christiansen v. Omnicom Group, 852 F.3d 195, 201 (2nd Cir.\n2017) (holding that plaintiff\xe2\x80\x99s gender stereotyping allegations stated a Title VII claim; plaintiff\n\xe2\x80\x9calleges that he was perceived by his supervisor as effeminate and submissive and that he was\nharassed for these reasons\xe2\x80\x9d); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir.2006)\n(holding that Price Waterhouse was concerned with gender nonconforming characteristics that\nwere readily demonstrable in the workplace, such as appearance or mannerisms; employees are\nnot protected merely because they are perceived to be homosexual); Nichols v. Azteca Restaurant\nEnters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that consistent with Price Waterhouse,\nharassment based on the perception that a male employee was effeminate occurred because of sex);\nsee also Brian Soucek, Perceived Homosexuals, 63 Am. U. L. Rev. 715, 726 (2014) (discussing\ntrend among the courts: \xe2\x80\x9cIn cases involving sexuality, plaintiffs tend to win if and only if they fail\nto conform to stereotypes in ways seen at work.\xe2\x80\x9d).\nWhat are the implications of protecting gay and lesbian employees under Title VII only if\nthey fail to conform to gender norms in their behavior or appearance while leaving masculine gay\nmen or feminine lesbians unprotected?\n3.\nForced Religious Conformity: Prowel also alleged religious discrimination. The court\nexplained that \xe2\x80\x9cTitle VII seeks to protect employees not only from discrimination against them on\nthe basis of their religious beliefs, but also from forced religious conformity.\xe2\x80\x9d In a leading case\naddressing religious conformity, the Seventh Circuit described the prohibition as forbidding an\nemployer from forcing employees \xe2\x80\x9cto measure up to [the employer\xe2\x80\x99s] religious expectations.\xe2\x80\x9d\n31\n\n\x0cVenters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997) (a plaintiff \xe2\x80\x9cneed only show that her\nperceived religious shortcomings . . . played a motivating role in [the employment decision]\xe2\x80\x9d).\nThe court rejected Prowel\xe2\x80\x99s claim of religious discrimination because it was based on his\nfailure to conform to his coworker\xe2\x80\x99s religious views about homosexuality. According to the court,\nProwel\xe2\x80\x99s religious claim was an attempt to bootstrap protection for sexual orientation onto Title\nVII. Do you agree? If an employer is not allowed as a condition of employment to require an\nemployee to live in accord with the employer\xe2\x80\x99s religious views, then should it matter what those\nviews entail? Is Prowel being punished because the religious view pertains to homosexuality?\nSuppose Prowel\xe2\x80\x99s coworkers held strong religious views about the sanctity of marriage. Suppose\nalso that Prowel is heterosexual and that his employer terminates him after learning that he is\ninvolved in an adulterous relationship with a married woman \xe2\x80\x9cin violation of God\xe2\x80\x99s command.\xe2\x80\x9d\nDifferent result than in Prowel? See Sarenpa v. Express Images, Inc., No. Civ. 04-15 38\n(JRT/JSM), 2005 WL 329455 (D. Minn. Sept. 8, 2005) (addressing religious conformity claim in\nthe context of an extramarital relationship); see also Terveer v. Billington, 34 F. Supp.3d 100 (D.\nD.C. 2014) (addressing religious conformity claim in the context of sexual orientation and\ndisagreeing with Prowel).\n4.\nRetaliation: The district court granted summary judgment in favor of Wise on Prowel\xe2\x80\x99s\nretaliation claim. To assert such a claim, Prowel had to show that he engaged in protected activity,\nwhich may consist of opposing a practice Title VII makes unlawful (e.g., discrimination because\nof race or sex). See 42 U.S.C. \xc2\xa7 2000e-3(a). The courts of appeals have universally held that\nplaintiffs meet that burden if they show they had a good faith, reasonable belief that the\ndiscriminatory practices about which they complain violate the statute. See Matthew W. Green Jr.,\nWhat\xe2\x80\x99s So Reasonable About Reasonableness? Rejecting a Case-Law Centered Approach to Title\nVII\xe2\x80\x99s Reasonable Belief Doctrine, 62 U. KAN. L. REV. 759, 771 & n.50 (2014). Because sexual\norientation is not explicitly protected by Title VII, the district court held that Prowell could not\nhave reasonably believed that discrimination on that basis was unlawful. Why does the Third\nCircuit reverse the district court with respect to the retaliation claim? Should employees who\nchallenge sexual orientation discrimination in the workplace be protected from retaliation under\nTitle VII? What factors should determine the reasonableness of an employee\xe2\x80\x99s belief about the\nunlawfulness of challenged conduct? Is it even reasonable to assume that lay employees know\nwhich traits are protected by federal law and which are not? See McCarthy v. R.J. Reynolds\nTobacco Co., No. CIV. 2:09\xe2\x80\x932495 WBS DAD, 2011 WL 4006634, at *4 (E.D. Cal. Sept. 8, 2011)\n(finding for purposes of a retaliation claim that plaintiffs were reasonable in their belief that sexual\norientation discrimination was unlawful under Title VII; noting the \xe2\x80\x9cgrowing gay rights movement\nin this country\xe2\x80\x9d as support for the reasonable belief).\n\nProblem 2\nChristopher Danvers was employed as a security guard at FMC, Inc., where he worked with 15\nother male security guards. Christopher alleges that after his coworkers learned that he had\n32\n\n\x0cbefriended a \xe2\x80\x9cmale homosexual\xe2\x80\x9d he was subjected to harassment. He alleged that his coworkers,\namong other things, made frequent derogatory comments regarding his sexual preferences and\nactivities; frequently called him a \xe2\x80\x9cfag\xe2\x80\x9d and questioned his masculinity because of his \xe2\x80\x9cspecial\nfriend\xe2\x80\x9d; asked him for sexual favors; repeatedly touched his crotch with a tape measure; shoved\nsanitary napkins in his face and simulated sex with a stuffed animal and then tried to push the\nstuffed animal into Danvers\xe2\x80\x99 crotch and backside. On another occasion, he alleged his coworkers\nhandcuffed him, pulled down his pants and simulated sex with him while one of coworkers\nphotographed the incident. The images were later placed in Christopher\xe2\x80\x99s workplace mailbox.\nChristopher says that his coworkers have repeatedly asked, but that he has refused to answer,\nwhether he is gay.\nChristopher comes to you for advice on whether he has an actionable Title VII claim. Please advise\nhim.\n\nProblem 3\nThomas Lucas worked for ACME, Inc., for several years and while employed there, he enjoyed a\ncordial relationship with his supervisor Lois Hopscotch. That all seemed to change after Thomas\nmarried his partner, Joe Feldman. Lois had a habit of calling her subordinates by their last names\nand she treated Joe the same way, calling him \xe2\x80\x9cLucas.\xe2\x80\x9d After he married, however, Thomas would\nrepeatedly remind Lois that he had taken Joe\xe2\x80\x99s last name and that she should call him \xe2\x80\x9cFeldman,\xe2\x80\x9d\nnot \xe2\x80\x9cLucas.\xe2\x80\x9d Lois ignored his requests to be called by his married name. She told Thomas that she\nwould never refer to him as \xe2\x80\x9cFeldman\xe2\x80\x9d because she refused to recognize his \xe2\x80\x9cso-called marriage\xe2\x80\x9d\nor his name change. \xe2\x80\x9cIt\xe2\x80\x99s just not natural,\xe2\x80\x9d she said. She told him that either he would go by\n\xe2\x80\x9cLucas\xe2\x80\x9d or he\xe2\x80\x99d have to find another job. When Thomas insisted on being called \xe2\x80\x9cFeldman,\xe2\x80\x9d Lois\nfired him.\nThomas comes to you for advice on whether he has an actionable Title VII claim. Please advise\nhim.\n\nD.\n\nSexual Orientation Discrimination Is Sex Discrimination\n\nKimberly Hively v. Ivy Tech Community College of Indiana\n853 F.3d 359 (7th Cir. 2017) (en banc)\nOpinion\nWOOD, Chief Judge.\nTitle VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to\ndiscriminate on the basis of a person\xe2\x80\x99s \xe2\x80\x9crace, color, religion, sex, or national origin . . . .\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition\n33\n\n\x0cagainst sex discrimination to exclude discrimination on the basis of a person\xe2\x80\x99s sexual orientation.\nThe Supreme Court, however, has never spoken to that question. In this case, we have been asked\nto take a fresh look at our position in light of developments at the Supreme Court extending over\ntwo decades. We have done so, and we conclude today that discrimination on the basis of sexual\norientation is a form of sex discrimination. We therefore reverse the district court\xe2\x80\x99s judgment\ndismissing Kimberly Hively\xe2\x80\x99s suit against Ivy Tech Community College and remand for further\nproceedings.\n\nI\nHively is openly lesbian. She began teaching as a part-time, adjunct professor at Ivy Tech\nCommunity College\xe2\x80\x99s South Bend campus in 2000. Hoping to improve her lot, she applied for at\nleast six full-time positions between 2009 and 2014. These efforts were unsuccessful; worse yet,\nin July 2014 her part-time contract was not renewed. Believing that Ivy Tech was spurning her\nbecause of her sexual orientation, she filed a pro se charge with the Equal Employment\nOpportunity Commission on December 13, 2013. It was short and to the point:\nI have applied for several positions at IVY TECH, fulltime, in the last 5 years. I believe I am\nbeing blocked from fulltime employment without just cause. I believe I am being discriminated\nagainst based on my sexual orientation. I believe I have been discriminated against and that my\nrights under Title VII of the Civil Rights Act of 1964 were violated.\nAfter receiving a right-to-sue letter, she filed this action in the district court (again acting pro se).\nIvy Tech responded with a motion to dismiss for failure to state a claim on which relief can be\ngranted. It argued that sexual orientation is not a protected class under Title VII. . . . Relying on a\nline of this court\xe2\x80\x99s cases exemplified by Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc.,\n224 F.3d 701 (7th Cir. 2000), the district court granted Ivy Tech\xe2\x80\x99s motion and dismissed Hively\xe2\x80\x99s\ncase with prejudice.\nNow represented by the Lambda Legal Defense & Education Fund, Hively has appealed to this\ncourt. After an exhaustive exploration of the law governing claims involving discrimination based\non sexual orientation, the panel affirmed. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir.\n2016). It began its analysis by noting that the idea that discrimination based on sexual orientation\nis somehow distinct from sex discrimination originated with dicta in Ulane v. Eastern Airlines,\nInc., 742 F.2d 1081 (7th Cir. 1984). Ulane stated (as if this resolved matters) that Title VII\xe2\x80\x99s\nprohibition against sex discrimination \xe2\x80\x9cimplies that it is unlawful to discriminate against women\nbecause they are women and against men because they are men.\xe2\x80\x9d Id. at 1085. From this truism, we\ndeduced that \xe2\x80\x9cCongress had nothing more than the traditional notion of \xe2\x80\x98sex\xe2\x80\x99 in mind when it voted\nto outlaw sex discrimination. . .\xe2\x80\x9d Doe v. City of Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997),\ncert. granted, judgment vacated sub nom. City of Belleville v. Doe, 523 U.S. 1001 (1998),\nabrogated by Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).\n...\nAlmost all of our sister circuits have understood the law in the same way. . . .\n34\n\n\x0c...\nThat is not because the Supreme Court has left this subject entirely to the side. To the contrary, as\nthe panel recognized, over the years the Court has issued several opinions that are relevant to the\nissue before us. Key among those decisions are Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),\nand Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). Price Waterhouse held that\nthe practice of gender stereotyping falls within Title VII\xe2\x80\x99s prohibition against sex discrimination,\nand Oncale clarified that it makes no difference if the sex of the harasser is (or is not) the same as\nthe sex of the victim. Our panel frankly acknowledged how difficult it is \xe2\x80\x9cto extricate the gender\nnonconformity claims from the sexual orientation claims.\xe2\x80\x9d 830 F.3d at 709. That effort, it\ncommented, has led to a \xe2\x80\x9cconfused hodge-podge of cases.\xe2\x80\x9d Id. at 711. It also noted that \xe2\x80\x9call gay,\nlesbian and bisexual persons fail to comply with the sine qua non of gender stereotypes\xe2\x80\x94that all\nmen should form intimate relationships only with women, and all women should form intimate\nrelationships only with men.\xe2\x80\x9d Id. Especially since the Supreme Court\xe2\x80\x99s recognition that the Due\nProcess and Equal Protection Clauses of the Constitution protect the right of same-sex couples to\nmarry, Obergefell v. Hodges, 135 S.Ct. 2584 (2015), bizarre results ensue from the current regime.\nAs the panel noted, it creates \xe2\x80\x9ca paradoxical legal landscape in which a person can be married on\nSaturday and then fired on Monday for just that act.\xe2\x80\x9d 830 F.3d at 714. Finally, the panel highlighted\nthe sharp tension between a rule that fails to recognize that discrimination on the basis of the sex\nwith whom a person associates is a form of sex discrimination, and the rule, recognized since\nLoving v. Virginia, 388 U.S. 1 (1967), that discrimination on the basis of the race with whom a\nperson associates is a form of racial discrimination.\n...\n\nII\nA\nThe question before us is not whether this court can, or should, \xe2\x80\x9camend\xe2\x80\x9d Title VII to add a new\nprotected category to the familiar list of \xe2\x80\x9crace, color, religion, sex, or national origin.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to\ndiscriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual\norientation are a subset of actions taken on the basis of sex. This is a pure question of statutory\ninterpretation and thus well within the judiciary\xe2\x80\x99s competence.\n...\nIvy Tech sets great store on the fact that Congress has frequently considered amending Title VII\nto add the words \xe2\x80\x9csexual orientation\xe2\x80\x9d to the list of prohibited characteristics, yet it has never done\nso. Many of our sister circuits have also noted this fact. In our view, however, it is simply too\ndifficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion\n35\n\n\x0con them. The goalposts have been moving over the years, as the Supreme Court has shed more\nlight on the scope of the language that already is in the statute: no sex discrimination.\nThe dissent makes much of the fact that Congresses acting more than thirty years after the passage\nof Title VII made use of the term \xe2\x80\x9csexual orientation\xe2\x80\x9d to prohibit discrimination or violence on\nthat basis in statutes such as the Violence Against Women Act and the federal Hate Crimes Act.\nBut this gets us no closer to answering the question at hand, for Congress may certainly choose to\nuse both a belt and suspenders to achieve its objectives, and the fact that \xe2\x80\x9csex\xe2\x80\x9d and \xe2\x80\x9csexual\norientation\xe2\x80\x9d discrimination may overlap in later statutes is of no help in determining whether\nsexual orientation discrimination is discrimination on the basis of sex for the purposes of Title VII.\nSee, e.g., McEvoy v. IEI Barge Servs., Inc., 622 F.3d 671, 677 (7th Cir. 2010) (\xe2\x80\x9cCongress may\nchoose a belt-and-suspenders approach to promote its policy objectives ... .\xe2\x80\x9d).\nMoreover, the agency most closely associated with this law, the Equal Employment Opportunity\nCommission, in 2015 announced that it now takes the position that Title VII\xe2\x80\x99s prohibition against\nsex discrimination encompasses discrimination on the basis of sexual orientation. See Baldwin v.\nFoxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015). Our point here is not\nthat we have a duty to defer to the EEOC\xe2\x80\x99s position. We assume for present purposes that no such\nduty exists. But the Commission\xe2\x80\x99s position may have caused some in Congress to think that\nlegislation is needed to carve sexual orientation out of the statute, not to put it in. In the end, we\nhave no idea what inference to draw from congressional inaction or later enactments, because there\nis no way of knowing what explains each individual member\xe2\x80\x99s votes, much less what explains the\nfailure of the body as a whole to change this 1964 statute.\nOur interpretive task is guided instead by the Supreme Court\xe2\x80\x99s approach in the closely related case\nof Oncale, where it had this to say as it addressed the question whether Title VII covers sexual\nharassment inflicted by a man on a male victim:\nWe see no justification in the statutory language or our precedents for a categorical rule\nexcluding same-sex harassment claims from the coverage of Title VII. As some courts have\nobserved, male-on-male sexual harassment in the workplace was assuredly not the principal evil\nCongress was concerned with when it enacted Title VII. But statutory prohibitions often go\nbeyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions\nof our laws rather than the principal concerns of our legislators by which we are governed. Title\nVII prohibits \xe2\x80\x9cdiscriminat[ion] . . . because of . . . sex\xe2\x80\x9d in the \xe2\x80\x9cterms\xe2\x80\x9d or \xe2\x80\x9cconditions\xe2\x80\x9d of\nemployment. Our holding that this includes sexual harassment must extend to sexual harassment\nof any kind that meets the statutory requirements.\n523 U.S. at 79\xe2\x80\x9380. The Court could not have been clearer: the fact that the enacting Congress may\nnot have anticipated a particular application of the law cannot stand in the way of the provisions\nof the law that are on the books.\nIt is therefore neither here nor there that the Congress that enacted the Civil Rights Act in 1964\nand chose to include sex as a prohibited basis for employment discrimination (no matter why it\ndid so) may not have realized or understood the full scope of the words it chose. [eds. note: The\ncourt set forth other instances in which the Supreme Court recognized Title VII\'s prohibition\n36\n\n\x0cagainst sex discrimination may be violated in ways that Congress in 1964 may not have\nanticipated--e.g., sexual harassment and same-sex harassment].\n\nB\nHively offers two approaches in support of her contention that \xe2\x80\x9csex discrimination\xe2\x80\x9d includes\ndiscrimination on the basis of sexual orientation. The first relies on the tried-and-true comparative\nmethod in which we attempt to isolate the significance of the plaintiff\xe2\x80\x99s sex to the employer\xe2\x80\x99s\ndecision: has she described a situation in which, holding all other things constant and changing\nonly her sex, she would have been treated the same way? The second relies on the Loving v.\nVirginia, 388 U.S. 1 (1967), line of cases, which she argues protect her right to associate intimately\nwith a person of the same sex. Although the analysis differs somewhat, both avenues end up in the\nsame place: sex discrimination.\n\n1\nIt is critical, in applying the comparative method, to be sure that only the variable of the plaintiff\xe2\x80\x99s\nsex is allowed to change. The fundamental question is not whether a lesbian is being treated better\nor worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many\npieces at once. Framing the question that way swaps the critical characteristic (here, sex) for both\nthe complainant and the comparator and thus obscures the key point\xe2\x80\x94whether the complainant\xe2\x80\x99s\nprotected characteristic played a role in the adverse employment decision. The counterfactual we\nmust use is a situation in which Hively is a man, but everything else stays the same: in particular,\nthe sex or gender of the partner.\nHively alleges that if she had been a man married to a woman (or living with a woman, or dating\na woman) and everything else had stayed the same, Ivy Tech would not have refused to promote\nher and would not have fired her. . . . To use the phrase from Ulane, Ivy Tech is disadvantaging\nher because she is a woman. Nothing in the complaint hints that Ivy Tech has an anti-marriage\npolicy that extends to heterosexual relationships, or for that matter even an anti-partnership policy\nthat is gender-neutral.\nViewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate\ncase of failure to conform to the female stereotype (at least as understood in a place such as modern\nAmerica, which views heterosexuality as the norm and other forms of sexuality as exceptional):\nshe is not heterosexual. Our panel described the line between a gender nonconformity claim and\none based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively\xe2\x80\x99s\nclaim is no different from the claims brought by women who were rejected for jobs in traditionally\nmale workplaces, such as fire departments, construction, and policing. The employers in those\ncases were policing the boundaries of what jobs or behaviors they found acceptable for a woman\n(or in some cases, for a man).\n37\n\n\x0cThis was the critical point that the Supreme Court was making in [Price Waterhouse v.] Hopkins.\n. . . And even before Hopkins, courts had found sex discrimination in situations where women\nwere resisting stereotypical roles. As far back as 1971, the Supreme Court held that Title VII does\nnot permit an employer to refuse to hire women with pre-school-age children, but not men. Phillips\nv. Martin Marietta Corp., 400 U.S. 542 (1971). Around the same time, this court held that Title\nVII \xe2\x80\x9cstrike[s] at the entire spectrum of disparate treatment of men and women resulting from sex\nstereotypes,\xe2\x80\x9d Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971), and struck\ndown a rule requiring only the female employees to be unmarried. In both those instances, the\nemployer\xe2\x80\x99s rule did not affect every woman in the workforce. Just so here: a policy that\ndiscriminates on the basis of sexual orientation does not affect every woman, or every man, but it\nis based on assumptions about the proper behavior for someone of a given sex. The discriminatory\nbehavior does not exist without taking the victim\xe2\x80\x99s biological sex (either as observed at birth or as\nmodified, in the case of transsexuals) into account. Any discomfort, disapproval, or job decision\nbased on the fact that the complainant\xe2\x80\x94woman or man\xe2\x80\x94dresses differently, speaks differently,\nor dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means\nthat it falls within Title VII\xe2\x80\x99s prohibition against sex discrimination, if it affects employment in\none of the specified ways.\n...\n\n2\nAs we noted earlier, Hively also has argued that action based on sexual orientation is sex\ndiscrimination under the associational theory. It is now accepted that a person who is discriminated\nagainst because of the protected characteristic of one with whom she associates is actually being\ndisadvantaged because of her own traits. This line of cases began with Loving, in which the\nSupreme Court held that \xe2\x80\x9crestricting the freedom to marry solely because of racial classifications\nviolates the central meaning of the Equal Protection Clause.\xe2\x80\x9d 388 U.S. at 12. The Court rejected\nthe argument that miscegenation statutes do not violate equal protection because they \xe2\x80\x9cpunish\nequally both the white and the Negro participants in an interracial marriage.\xe2\x80\x9d Id. at 8. When dealing\nwith a statute containing racial classifications, it wrote, \xe2\x80\x9cthe fact of equal application does not\nimmunize the statute from the very heavy burden of justification\xe2\x80\x9d required by the Fourteenth\nAmendment for lines drawn by race. Id. at 9.\nIn effect, both parties to the interracial marriage were being denied important rights by the state\nsolely on the basis of their race. This point by now has been recognized for many years. For\nexample, in Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986), the\nEleventh Circuit considered a case in which a white man (Parr) married to an African-American\nwoman was denied employment by an insurance company because of his interracial marriage. He\nsued under Title VII, but the district court dismissed the complaint on the ground that it failed to\ndescribe discrimination on the basis of race. The court of appeals reversed. It held that \xe2\x80\x9c[w]here a\nplaintiff claims discrimination based upon an interracial marriage or association, he alleges, by\ndefinition, that he has been discriminated against because of his race.\xe2\x80\x9d Id. at 892. . . .\n38\n\n\x0cThe fact that we now accept this analysis tells us nothing, however, about the world in 1967, when\nLoving reached the Supreme Court. The dissent implies that we are adopting an anachronistic view\nof Title VII, enacted just three years before Loving, but it is the dissent\xe2\x80\x99s understanding of Loving\nand the miscegenation laws that is an anachronism. Thanks to Loving and the later cases we\nmentioned, society understands now that such laws are (and always were) inherently racist. But as\nof 1967 (and thus as of 1964), Virginia and 15 other states had anti-miscegenation laws on the\nbooks. Loving, 388 U.S. at 6. These laws were long defended and understood as nondiscriminatory because the legal obstacle affected both partners. The Court in Loving recognized\nthat equal application of a law that prohibited conduct only between members of different races\ndid not save it. Changing the race of one partner made a difference in determining the legality of\nthe conduct, and so the law rested on \xe2\x80\x9cdistinctions drawn according to race,\xe2\x80\x9d which were\nunjustifiable and racially discriminatory. Loving, 388 U.S. at 11. So too, here. If we were to change\nthe sex of one partner in a lesbian relationship, the outcome would be different. This reveals that\nthe discrimination rests on distinctions drawn according to sex.\nThe dissent would instead have us compare the treatment of men who are attracted to members of\nthe male sex with the treatment of women who are attracted to members of the female sex, and ask\nwhether an employer treats the men differently from the women. But even setting to one side the\nlogical fallacy involved, Loving shows why this fails. In the context of interracial relationships,\nwe could just as easily hold constant a variable such as \xe2\x80\x9csexual or romantic attraction to persons\nof a different race\xe2\x80\x9d and ask whether an employer treated persons of different races who shared that\npropensity the same. That is precisely the rule that Loving rejected, and so too must we, in the\ncontext of sexual associations.\nThe fact that Loving [and Title VII cases] deal with racial associations, as opposed to those based\non color, national origin, religion, or sex, is of no moment. The text of the statute draws no\ndistinction, for this purpose, among the different varieties of discrimination it addresses\xe2\x80\x94a fact\nrecognized by the Hopkins plurality. See 490 U.S. at 244 n.9. This means that to the extent that\nthe statute prohibits discrimination on the basis of the race of someone with whom the plaintiff\nassociates, it also prohibits discrimination on the basis of the national origin, or the color, or the\nreligion, or (as relevant here) the sex of the associate. No matter which category is involved, the\nessence of the claim is that the plaintiff would not be suffering the adverse action had his or her\nsex, race, color, national origin, or religion been different.\n\nIII\nToday\xe2\x80\x99s decision must be understood against the backdrop of the Supreme Court\xe2\x80\x99s decisions, not\nonly in the field of employment discrimination, but also in the area of broader discrimination on\nthe basis of sexual orientation. We already have discussed the employment cases, especially\nHopkins and Oncale. The latter line of cases began with Romer v. Evans, 517 U.S. 620 (1996), in\nwhich the Court held that a provision of the Colorado Constitution forbidding any organ of\ngovernment in the state from taking action designed to protect \xe2\x80\x9chomosexual, lesbian, or bisexual\xe2\x80\x9d\npersons, id. at 624, violated the federal Equal Protection Clause. Romer was followed by Lawrence\n39\n\n\x0cv. Texas, 539 U.S. 558 (2003), in which the Court found that a Texas statute criminalizing\nhomosexual intimacy between consenting adults violated the liberty provision of the Due Process\nClause. Next came United States v. Windsor, 133 S.Ct. 2675 (2013), which addressed the\nconstitutionality of the part of the Defense of Marriage Act (DOMA) that excluded a same-sex\npartner from the definition of \xe2\x80\x9cspouse\xe2\x80\x9d in other federal statutes. The Court held that this part of\nDOMA \xe2\x80\x9cviolate[d] basic due process and equal protection principles applicable to the Federal\nGovernment.\xe2\x80\x9d Id. at 2693. Finally, the Court\xe2\x80\x99s decision in Obergefell, supra, held that the right to\nmarry is a fundamental liberty right, protected by the Due Process and Equal Protection Clauses\nof the Fourteenth Amendment. 135 S.Ct. at 2604. The Court wrote that \xe2\x80\x9c[i]t is now clear that the\nchallenged laws burden the liberty of same-sex couples, and it must be further acknowledged that\nthey abridge central precepts of equality.\xe2\x80\x9d Id.\n...\nWe close by noting that we have decided only the issue put before us. Additional complications\ncan be saved for another day, when they are actually involved in the case. Ivy Tech did not contend,\nfor example, that it was a religious institution and the positions it denied to Hively related to a\nreligious mission. See 42 U.S.C. \xc2\xa7 2000e-1(a). Nor have we had any occasion to consider the\nmeaning of discrimination in the context of the provision of social or public services. We hold\nonly that a person who alleges that she experienced employment discrimination on the basis of her\nsexual orientation has put forth a case of sex discrimination for Title VII purposes. It was therefore\nwrong to dismiss Hively\xe2\x80\x99s complaint for failure to state a claim. The judgment of the district court\nis REVERSED and the case is REMANDED for further proceedings.\n[The concurring opinions by Judge Posner and Judge Flaum are omitted]\n\nSYKES, Circuit Judge, with whom BAUER and KANNE, Circuit Judges, join, dissenting.\n...\nRespect for the constraints imposed on the judiciary by a system of written law must begin with\nfidelity to the traditional first principle of statutory interpretation: When a statute supplies the rule\nof decision, our role is to give effect to the enacted text, interpreting the statutory language as a\nreasonable person would have understood it at the time of enactment. We are not authorized to\ninfuse the text with a new or unconventional meaning or to update it to respond to changed social,\neconomic, or political conditions.\n...\n\n40\n\n\x0cI\n...\n\nA\n[A]s a matter of interpretive method, I agree with my colleagues that the scope of Title VII is not\nlimited by the subjective intentions of the enacting legislators. Or as Chief Judge Wood puts it in\nher elegant opinion for the en banc majority, the expectations of the enacting legislators \xe2\x80\x9ccannot\nstand in the way of the provisions of the law that are on the books.\xe2\x80\x9d\n\nB\nThat is where our agreement ends. The en banc majority rests its new interpretation of sex\ndiscrimination on a thought experiment drawn from the \xe2\x80\x9ctried-and-true\xe2\x80\x9d comparative method of\nproof often used by plaintiffs in discrimination cases. Id. at p. 11. The majority also invokes Loving\nv. Virginia, 388 U.S. 1 (1967), the Supreme Court\xe2\x80\x99s historic decision striking down Virginia\xe2\x80\x99s\nmiscegenation laws under the Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause, as well as cases\ninvolving sex stereotyping, most prominently Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).\nBut the analysis must begin with the statutory text; it largely ends there too. Is it even remotely\nplausible that in 1964, when Title VII was adopted, a reasonable person competent in the English\nlanguage would have understood that a law banning employment discrimination \xe2\x80\x9cbecause of sex\xe2\x80\x9d\nalso banned discrimination because of sexual orientation? The answer is no, of course not.\n\xe2\x80\x9cIt is a fundamental canon of statutory construction that, unless otherwise defined, words will be\ninterpreted as taking their ordinary, contemporary, common meaning.\xe2\x80\x9d Sandifer v. U.S. Steel\nCorp., 134 S. Ct. 870, 876 (2014) (internal quotation marks omitted). The word \xe2\x80\x9ccontemporary\xe2\x80\x9d\nas used here means contemporaneous with the statute\xe2\x80\x99s enactment, not \xe2\x80\x9ccontemporary\xe2\x80\x9d as in\n\xe2\x80\x9cnow.\xe2\x80\x9d Id. at 876\xe2\x80\x9377; see also Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016)\n(citing Sandifer and explaining that statutory interpretation \xe2\x80\x9clook[s] to the meaning of the word[s]\nat the time the statute was enacted\xe2\x80\x9d). The interpretive inquiry looks to the original public meaning\nof the statutory text.\nTitle VII does not define discrimination \xe2\x80\x9cbecause of sex.\xe2\x80\x9d In common, ordinary usage in 1964\xe2\x80\x94\nand now, for that matter\xe2\x80\x94the word \xe2\x80\x9csex\xe2\x80\x9d means biologically male or female; it does not also refer\nto sexual orientation. See, e.g., Sex, THE AMERICAN HERITAGE DICTIONARY OF THE\nENGLISH LANGUAGE (1st ed. 1969) (defining \xe2\x80\x9csex\xe2\x80\x9d as \xe2\x80\x9c[t]he property or quality by which\norganisms are classified according to their reproductive functions[;] [e]ither of two divisions,\ndesignated male and female, of this classification\xe2\x80\x9d); Sex, NEW OXFORD AMERICAN\nDICTIONARY (3d ed. 2010) (defining \xe2\x80\x9csex\xe2\x80\x9d as \xe2\x80\x9ceither of the two main categories (male and\nfemale) into which humans and many other living things are divided on the basis of their\n41\n\n\x0creproductive functions\xe2\x80\x9d); Sex, THE AMERICAN HERITAGE DESK DICTIONARY (5th ed.\n2013) (defining \xe2\x80\x9csex\xe2\x80\x9d as \xe2\x80\x9c[e]ither of the two divisions, female and male, by which most organisms\nare classified on the basis of their reproductive organs and functions[;] [t]he condition or character\nof being female or male\xe2\x80\x9d).\nTo a fluent speaker of the English language\xe2\x80\x94then and now\xe2\x80\x94the ordinary meaning of the word\n\xe2\x80\x9csex\xe2\x80\x9d does not fairly include the concept of \xe2\x80\x9csexual orientation.\xe2\x80\x9d The two terms are never used\ninterchangeably, and the latter is not subsumed within the former; there is no overlap in meaning.\nContrary to the majority\xe2\x80\x99s vivid rhetorical claim, it does not take \xe2\x80\x9cconsiderable calisthenics\xe2\x80\x9d to\nseparate the two. The words plainly describe different traits, and the separate and distinct meaning\nof each term is easily grasped. More specifically to the point here, discrimination \xe2\x80\x9cbecause of sex\xe2\x80\x9d\nis not reasonably understood to include discrimination based on sexual orientation, a different\nimmutable characteristic. Classifying people by sexual orientation is different than classifying\nthem by sex. . . .\n...\n\nC\nThis commonsense understanding is confirmed by the language Congress uses when it does\nlegislate against sexual-orientation discrimination. For example, the Violence Against Women Act\nprohibits funded programs and activities from discriminating \xe2\x80\x9con the basis of actual or perceived\nrace, color, religion, national origin, sex, gender identity, . . . sexual orientation, or disability.\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 13925(b)(13)(A) (emphases added). If sex discrimination is commonly understood to\nencompass sexual-orientation discrimination, then listing the two categories separately, as this\nstatute does, is needless surplusage. The federal Hate Crimes Act is another example. It imposes a\nheightened punishment for causing or attempting to cause bodily injury \xe2\x80\x9cto any person, because\nof the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or\ndisability of any person.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 249(a)(2)(A) (emphases added).\n...\nThis uniformity of usage is powerful objective evidence that sexual-orientation discrimination is\nbroadly recognized as an independent category of discrimination and is not synonymous with sex\ndiscrimination.\n\nII\nMy colleagues in the majority superficially acknowledge Ulane\xe2\x80\x99s \xe2\x80\x9ctruism\xe2\x80\x9d that sex discrimination\nis discrimination based on a person\xe2\x80\x99s biological sex. As they see it, however, even if sex\ndiscrimination is understood in the ordinary way, sexual-orientation discrimination is sex\ndiscrimination because \xe2\x80\x9cit is actually impossible to discriminate on the basis of sexual orientation\n42\n\n\x0cwithout discriminating on the basis of sex.\xe2\x80\x9d\nNot true. An employer who refuses to hire homosexuals is not drawing a line based on the job\napplicant\xe2\x80\x99s sex. He is not excluding gay men because they are men and lesbians because they are\nwomen. His discriminatory motivation is independent of and unrelated to the applicant\xe2\x80\x99s sex.\nSexism (misandry and misogyny) and homophobia are separate kinds of prejudice that classify\npeople in distinct ways based on different immutable characteristics. Simply put, sexualorientation discrimination doesn\xe2\x80\x99t classify people by sex; it doesn\xe2\x80\x99t draw male/female distinctions\nbut instead targets homosexual men and women for harsher treatment than heterosexual men and\nwomen.\n...\nIII\nA\nThe majority also draws on Loving, the Supreme Court\xe2\x80\x99s iconic decision invalidating Virginia\xe2\x80\x99s\nmiscegenation statutes on equal-protection grounds. This case is not a variant of Loving.\nMiscegenation laws plainly employ invidious racial classifications; they are inherently racially\ndiscriminatory. In contrast, sexual-orientation discrimination springs from a wholly different kind\nof bias than sex discrimination. The two forms of discrimination classify people based on different\ntraits and thus are not the same.\nIn Loving, Virginia tried to defend its antimiscegenation regime by insisting that miscegenation\nstatutes do not actually discriminate based on race because both the black and white spouses in an\ninterracial marriage are punished equally. 388 U.S. at 8 (\xe2\x80\x9c[T]he State contends that, because its\nmiscegenation statutes punish equally both the white and the Negro participants in an interracial\nmarriage, these statutes, despite their reliance on racial classifications[,] do not constitute an\ninvidious discrimination based upon race.\xe2\x80\x9d). The Supreme Court made short work of that specious\nargument: \xe2\x80\x9c[W]e deal [here] with statutes containing racial classifications, and the fact of equal\napplication does not immunize the statute[s] from the very heavy burden of justification which the\nFourteenth Amendment has traditionally required of state statutes drawn according to race.\xe2\x80\x9d Id. at\n9.\nThe Court went on to explain that the \xe2\x80\x9cclear and central purpose of the Fourteenth Amendment\nwas to eliminate all official state sources of invidious racial discrimination in the States.\xe2\x80\x9d Id. at 10.\nThe Court continued with this: \xe2\x80\x9cThere can be no question but that Virginia\xe2\x80\x99s miscegenation\nstatutes rest solely upon distinctions drawn according to race. The statutes proscribe generally\naccepted conduct if engaged in by members of different races.\xe2\x80\x9d Id. at 11. After explaining that the\n\xe2\x80\x9c[p]enalties for miscegenation arose as an incident to slavery,\xe2\x80\x9d id. at 6, and are \xe2\x80\x9cdesigned to\nmaintain White Supremacy,\xe2\x80\x9d id. at 11, the Court announced its holding: \xe2\x80\x9cThere can be no doubt\nthat restricting the freedom to marry solely because of racial classifications violates the central\nmeaning of the Equal Protection Clause,\xe2\x80\x9d id. at 12.\n43\n\n\x0cAs these passages from the Court\xe2\x80\x99s opinion make clear, Loving rests on the inescapable truth that\nmiscegenation laws are inherently racist. They are premised on invidious ideas about white\nsuperiority and use racial classifications toward the end of racial purity and white supremacy.\nSexual-orientation discrimination, on the other hand, is not inherently sexist. No one argues that\nsexual-orientation discrimination aims to promote or perpetuate the supremacy of one sex. In short,\nLoving neither compels nor supports the majority\xe2\x80\x99s decision to upend the long-settled\nunderstanding that sex discrimination and sexual-orientation discrimination are distinct.\n...\n\nB\nThe majority also relies on cases involving sex stereotyping, most notably the Supreme Court\xe2\x80\x99s\ndecision in Price Waterhouse v. Hopkins. More specifically, my colleagues conclude that a claim\nof sexual-orientation discrimination is indistinguishable from a claim involving sex stereotyping.\nI disagree. Nothing in Hopkins altered the traditional understanding that sexual-orientation\ndiscrimination is a distinct type of discrimination and is not synonymous with sex discrimination.\nTo put the matter plainly, heterosexuality is not a female stereotype; it is not a male stereotype; it\nis not a sex-specific stereotype at all. An employer who hires only heterosexual employees is\nneither assuming nor insisting that his female and male employees match a stereotype specific to\ntheir sex. He is instead insisting that his employees match the dominant sexual orientation\nregardless of their sex. Sexual-orientation discrimination does not classify people according to\ninvidious or idiosyncratic male or female stereotypes. It does not spring from a sex-specific bias\nat all.\n...\n\nC\nNeither does Oncale compel or support today\xe2\x80\x99s decision. Oncale held only that same-sex sexual\nharassment may, in an appropriate case, support a claim under Title VII provided that it \xe2\x80\x9cmeets\nthe statutory requirements.\xe2\x80\x9d 523 U.S. at 79\xe2\x80\x9380. The Court reiterated that in all sex-discrimination\ncases, including sexual-harassment cases, \xe2\x80\x9c[t]he critical issue, Title VII\xe2\x80\x99s text indicates, is whether\nmembers of one sex are exposed to disadvantageous terms or conditions of employment to which\nmembers of the other sex are not exposed.\xe2\x80\x9d Id. at 80 (quotation marks omitted).\n[I]n authorizing claims of same-sex harassment as a theoretical matter, the Court carefully tethered\nall sexual-harassment claims to the statutory requirement that the plaintiff prove discrimination\n\xe2\x80\x9cbecause of sex.\xe2\x80\x9d Nothing in Oncale eroded the distinction between sex discrimination and sexualorientation discrimination or opened the door to a new interpretation of Title VII.\n44\n\n\x0cOncale was not a revolutionary decision. In contrast, today\xe2\x80\x99s decision by the en banc court works\na profound transformation of Title VII by any measure.\n\nD\nThe majority also finds support for its decision in \xe2\x80\x9cthe backdrop of the Supreme Court\xe2\x80\x99s decisions\n... in the area of broader discrimination on the basis of sexual orientation,\xe2\x80\x9d citing Romer v. Evans,\n517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); United States v. Windsor, 133 S.\nCt. 2675 (2013); and Obergefell v. Hodges, 135 S. Ct. 2584 (2015).\nBut the majority\xe2\x80\x99s position is actually irreconcilable with these cases. First, Lawrence was decided\nsolely under the Due Process Clause; it was not an equal-protection case. 539 U.S. at 564. In the\nother cases, far from collapsing the well-understood distinction between sex discrimination and\nsexual-orientation discrimination, the Court actually preserved it. The Court assigned these two\ndistinct forms of discrimination to different analytical categories for purposes of equal-protection\nscrutiny. If sex discrimination and sexual-orientation discrimination were really one and the same,\nthen the Court would have applied the intermediate standard of scrutiny that governs judicial\nreview of laws that classify people by sex. See United States v. Virginia, 518 U.S. 515, 531 (1996).\nIt did not do so.\n\nE\nFinally, drawing especially on Obergefell, my colleagues worry that adhering to the long-settled\ninterpretation of Title VII \xe2\x80\x9ccreates \xe2\x80\x98a paradoxical legal landscape in which a person can be married\non Saturday and then fired on Monday for just that act.\xe2\x80\x99 \xe2\x80\x9d Majority Op. at p. 5 (quoting Hively v.\nIvy Tech Cmty. Coll., 830 F.3d 698, 714 (7th Cir. 2016)). The concern is understandable, but my\ncolleagues conflate the distinction between state action, which is subject to constitutional limits,\nand private action, which is regulated by statute. The Due Process and Equal Protection Clauses\nare constitutional restraints on government. Title VII is a statutory restraint on employers. The\nlegal regimes differ accordingly. Any discrepancy is a matter for legislative, not judicial,\ncorrection.\n***\nIf Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly.\nBut Title VII does not provide a remedy for this kind of discrimination. The argument that it should\nmust be addressed to Congress.\n\nIV\n45\n\n\x0c\xe2\x80\xa6\n. . .It\xe2\x80\x99s understandable that the court is impatient to protect lesbians and gay men from workplace\ndiscrimination without waiting for Congress to act. Legislative change is arduous and can be slow\nto come. But we\xe2\x80\x99re not authorized to amend Title VII by interpretation. The ordinary, reasonable,\nand fair meaning of sex discrimination as that term is used in Title VII does not include\ndiscrimination based on sexual orientation, a wholly different kind of discrimination. Because Title\nVII does not by its terms prohibit sexual-orientation discrimination, Hively\xe2\x80\x99s case was properly\ndismissed. I respectfully dissent.\nNotes and Questions\n1.\nHively is the first and to date the only federal appeals court decision recognizing Title VII\nsexual orientation claims. The court notes that the EEOC reached the same conclusion in 2015\nafter decades of stating that such claims fell outside the scope of Title VII. See Baldwin v. Foxx,\nEEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015). As the Seventh Circuit\nexplains, Baldwin is not binding on courts. However, some courts have found its reasoning\npersuasive and have adopted it. See e.g., Videckis v. Pepperdine University, 150 F. Supp.3d\n1151,1161 (C.D. Cal. 2015) (explaining that its holding recognizing sexual orientation\ndiscrimination under Title IX is consistent with Baldwin). But see Hinton v. Virginia Union Univ.,\n185 F. Supp.3d 807, 815017 (E.D. Va. 2016) (refusing to follow Baldwin). Although the Supreme\nCourt has yet to speak on the issue, a plaintiff in 2017 filed a petition for certiorari with the Court\nafter the Eleventh Circuit rejected her claim that Title VII prohibits employment discrimination on\nthe basis of sexual orientation. See Evans v. Georgia Regional Hosp., 850 F.3d 1248, 1254 (11th\nCir 2017), pet. for cert. filed, (No. 17-370), Sept. 7, 2017.\n\nThe EEOC maintains a list of judicial decisions addressing LGBT-related claims under\nTitle VII, which you may find helpful to keep you apprised of the developing law in this area. See\nExamples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title\nVII, https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm, (last visited Sept.\n28, 2017).\n2.\n(\xe2\x80\x9cLambda Legal\xe2\x80\x9d) represented the plaintiff in Hively on appeal. In several instances, the\ndissent calls Lambda Legal\xe2\x80\x99s position that sexual orientation is a form of sex discrimination a\n\xe2\x80\x9ccreative\xe2\x80\x9d and \xe2\x80\x9cnew\xe2\x80\x9d interpretation of the statute. While as we know, courts at one time universally\nrejected the argument that discrimination because of sexual orientation is discrimination because\nof sex (recall DeSantis), plaintiffs have made these arguments for years. Thus, that interpretation\nof Title VII is not technically new or novel. Yet, doesn\xe2\x80\x99t Judge Sykes\xe2\x80\x99s broader point hold true?\nUntil recently, courts have rejected the \xe2\x80\x9csexual orientation is sex\xe2\x80\x9d argument. Moreover, Congress\ndid not have sexual orientation in mind when it enacted Title VII, a point the majority does not\ncontest. Why does the majority find these facts to be irrelevant to whether Title VII protects against\n46\n\n\x0csexual orientation discrimination? In holding that sexual orientation discrimination is cognizable\nunder Title VII, the majority cites Oncale for the proposition that Title VII is not limited to an\ninterpretation anticipated by legislators in 1964 when the statute was enacted. How does Judge\nSykes respond to the majority\xe2\x80\x99s reliance on Oncale for that proposition?\n\n3.\nJudge Sykes contends that sex and sexual orientation are distinct \xe2\x80\x9cimmutable\xe2\x80\x9d\ncharacteristics, and that \xe2\x80\x9cpowerful objective evidence\xe2\x80\x9d of that distinction is the fact that numerous\nfederal and state statutes protect both characteristics, and thus treat them as \xe2\x80\x9cindependent\ncategor[ies] of discrimination.\xe2\x80\x9d How does the majority opinion respond to this argument? Which\nposition do you find more persuasive?\n\n4.\nJudge Sykes says that \xe2\x80\x9csex discrimination is discrimination based on a person\xe2\x80\x99s biological\nsex.\xe2\x80\x9d She chides the majority for its position that \xe2\x80\x9cit is impossible to discriminate on the basis of\nsexual orientation without discriminating on the basis of sex.\xe2\x80\x9d Rather, according to Judge Sykes,\nan employer that discriminates against, say, gay men is not discriminating against them because\nthey are men but because they are gay. The employer\xe2\x80\x99s target, she argues, is homosexual men, not\nmen because they are men. Do you agree? Can sex and sexual orientation be so easily unpacked\nor are they inextricably linked?\nAccording to the American Psychological Association (\xe2\x80\x9cAPA\xe2\x80\x9d), \xe2\x80\x9c[s]exual acts or\nattractions are categorized as homosexual or heterosexual according to the biological sex of the\nindividuals involved, relative to each other.\xe2\x80\x9d See Obergefell v. Hodges, Brief of the American\nPsychological Association, et al., Nos. 14-556, 14-562, 14-571, 14-574, 2015 WL 1004713, at *10\n(2015). The APA also states that \xe2\x80\x9c[i]n the United States the most frequent labels [to define sexual\norientation include] lesbians (women attracted to women), gay men (men attracted to men), and\nbisexual people (men or women attracted to both sexes).\xe2\x80\x9d See What is Sexual Orientation,\nAmerican Psychological Association, http://www.apa.org/topics/lgbt/orientation.aspx, (last\nvisited Sept. 28, 2017).\nYou may recall that Title VII is violated if discrimination is motivated, in part, by an\nindividual\xe2\x80\x99s protected trait. See 42 U.S.C. \xc2\xa7 2000e-2(m). Accordingly, the statute does not require\nthat individuals prove that an employer discriminated against them solely because of their sex.\nAssuming if asked why he fired a lesbian employee, the employer responds that he did so \xe2\x80\x9cbecause\nof her sexual orientation,\xe2\x80\x9d didn\xe2\x80\x99t the employee\xe2\x80\x99s sex, in part, motivate the employer\xe2\x80\x99s decision?\nSee Hively, 853 F.3d at 358-59 (Flaum, J., concurring) (yes). Or does Judge Sykes have the more\npersuasive argument?\n5.\nThe plaintiff in Hively invokes Loving v. Virginia to support her association claim based\non sex. Why do the majority and dissenting opinions part ways on their understanding of whether\nLoving is relevant to the associational issues that arise in this case? Whose argument is more\npersuasive and why?\n47\n\n\x0c6.\nThe court in Hively recognizes that in light of recent constitutional cases by the Supreme\nCourt, particularly Obergefell v. Hodges, that \xe2\x80\x9cbizarre results would ensue under the current\nregime[;]. . . it creates a paradoxical legal landscape in which a person can be married on Saturday\nand then fired on Monday for just that act.\xe2\x80\x9d While this is undoubtedly true, should those bizarre\nresults have factored into the court\xe2\x80\x99s interpretation of Title VII? How does Judge Sykes respond\nto the majority\xe2\x80\x99s concern about the bizarre results that would ensue unless the court finds that\nsexual orientation claims fall within Title VII\xe2\x80\x99s protective scope?\n\nProblem 4\nMarcia Grady applies for a job as an analyst with Umbridge, Inc. Based on the job description she\nis well qualified for the position and indeed Umbridge invites her to interview with the company.\nMr. Thomas Builders interviews Marcia. During the interview, he praises Marcia\xe2\x80\x99s qualifications\nand tells her that she seems \xe2\x80\x9cright for the job.\xe2\x80\x9d Things turn sour after he asks her to tell him a little\nabout herself. Marcia responds that she is happily married to a wonderful woman and that the\ncouple have a two-year old daughter. Mr. Builders immediately responds \xe2\x80\x9cthat won\xe2\x80\x99t do.\xe2\x80\x9d He says\nthat if she has a young child at home, her place is with her child \xe2\x80\x9cduring its formative years.\xe2\x80\x9d He\nexplains that his own wife stayed home with each of their children until they were school age and\nhe expects that any \xe2\x80\x9cdecent mom would do the same.\xe2\x80\x9d He then tells her that he also is not sure that\nher homosexual relationship would be a \xe2\x80\x9cgood fit for Umbridge\xe2\x80\x99s image.\xe2\x80\x9d He thanks her for\ncoming in but tells her that he \xe2\x80\x9cjust remembered that the position had already been filled.\xe2\x80\x9d\nMarcia suspects that the reason she didn\xe2\x80\x99t get the job is because of the details she shared\nabout her personal life. She comes to you for advice. Assume that Builders has no problem hiring\nwomen and thus doesn\xe2\x80\x99t discriminate against women because they are women. Assume that courts\nin your jurisdiction (none of which you are bound to follow) have reached inconsistent results\nconcerning the viability of Title VII sexual orientation claims. However, all courts in your\njurisdiction recognize that employers may not engage in sex stereotyping. How would you advise\nMarcia? For purposes of Title VII, in what ways, if any, would a claim involving her parental\nstatus differ from your analysis of her sexual orientation claim?\n\nIV. Gender Identity and Expression\nAccording to the American Psychological Association, \xe2\x80\x9c[t]ransgender is an umbrella term\nfor persons whose gender identity [one\xe2\x80\x99s internal sense of being male, female or something else],\ngender expression or behavior does not conform to that typically associated with the sex to which\nthey were assigned at birth.\xe2\x80\x9d \xe2\x80\x9cWhat Does Gender Mean?\xe2\x80\x9d American Psychological Association,\nhttp://www.apa.org/topics/lgbt/transgender.aspx (last visited Sept. 28, 2017)); see also Jillian\nTodd Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the \xe2\x80\x9cPlain\n48\n\n\x0cMeaning\xe2\x80\x9d of \xe2\x80\x9cSex\xe2\x80\x9d in Title VII of the Civil Rights Act of 1964, 18 TEMP. POL & CIV. RTS. L. REV.\n573, 589 (2009) (explaining that \xe2\x80\x9ctransgender\xe2\x80\x9d may \xe2\x80\x9cdenote transsexuals, transvestites,\ncrossdressers, and anyone else whose gender identity or gender expression varies from the\ndimorphic norm\xe2\x80\x9d).\nPlaintiffs have long argued that Title VII prohibits discrimination on the basis of\ntransgender status or gender identity. Similar to the approach taken by the court in DeSantis\nregarding sexual orientation, early courts rejected these claims as well. See e.g., Ulane v. Eastern\nAirlines, 742 F.2d 1081, 1085 (7th Cir. 1984) (holding that Title VII does not protect employees\nagainst discrimination because of homosexuality, transsexuality or transvestitism). As with sexual\norientation, Price Waterhouse also has changed the legal landscape for employees alleging\ndiscrimination on the basis of gender identity or expression. As we shall see, however, some courts\nand the EEOC have held that employees going through gender transition have other means to show\nthat discrimination is \xe2\x80\x9cbecause of sex\xe2\x80\x9d beyond evidence of gender stereotyping.\nSeveral of the cases discussed in this section refer to the plaintiffs involved in those cases\nas being \xe2\x80\x9ctranssexual,\xe2\x80\x9d i.e., \xe2\x80\x9cpeople whose gender identity is different from their assigned sex [and\nwho] [o]ften . . . alter or wish to alter their bodies . . . to make [them] as congruent as possible with\ntheir gender identities.\xe2\x80\x9d \xe2\x80\x9cWhat Does Gender Mean?,\xe2\x80\x9d American Psychological Association,\nhttp://www.apa.org/topics/lgbt/transgender.aspx. However, unless otherwise indicated, the Notes\nand explanatory materials use the more inclusive term \xe2\x80\x9ctransgender\xe2\x80\x9d to refer to all individuals\nwhose gender identity, expression or both and their birth sex are incongruent.\n\n49\n\n\x0cA.\n\nGender Identity and Expression and Sex Stereotyping\n\nSmith v. City of Salem, Ohio\n378 F.3d 566 (6th Cir. 2004).\nBefore COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge.\n\nAmended Opinion\nCOLE, Circuit Judge.\nPlaintiff\xe2\x80\x93Appellant Jimmie L. Smith appeals from a judgment of the United States District Court\nfor the Northern District of Ohio dismissing his claims against his employer, Defendant\xe2\x80\x93Appellant\nCity of Salem, Ohio, and various City officials, and granting judgment on the pleadings to\nDefendants, pursuant to Federal Rule of Civil Procedure 12(c). Smith, who considers himself a\ntranssexual and has been diagnosed with Gender Identity Disorder, alleged that Defendants\ndiscriminated against him in his employment on the basis of sex. He asserted claims pursuant to\nTitle VII of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000e et seq., and 42 U.S.C. \xc2\xa7 1983. The\ndistrict court dismissed those claims pursuant to Rule 12(c). Smith also asserted state law claims\nfor invasion of privacy and civil conspiracy; the district court dismissed those claims as well,\nhaving declined to exercise pendent jurisdiction over them.\nFor the following reasons, we reverse the judgment of the district court and remand the case for\nfurther proceedings consistent with this opinion.\n\nI. BACKGROUND\nSmith is\xe2\x80\x94and has been, at all times relevant to this action\xe2\x80\x94employed by the city of Salem, Ohio,\nas a lieutenant in the Salem Fire Department (the \xe2\x80\x9cFire Department\xe2\x80\x9d). Prior to the events\nsurrounding this action, Smith worked for the Fire Department for seven years without any\nnegative incidents. Smith\xe2\x80\x94biologically and by birth a male\xe2\x80\x94is a transsexual and has been\ndiagnosed with Gender Identity Disorder (\xe2\x80\x9cGID\xe2\x80\x9d), which the American Psychiatric Association\ncharacterizes as a disjunction between an individual\xe2\x80\x99s sexual organs and sexual identity. American\nPsychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 576\xe2\x80\x93582 (4th\ned.2000). After being diagnosed with GID, Smith began \xe2\x80\x9cexpressing a more feminine appearance\non a full-time basis\xe2\x80\x9d\xe2\x80\x94including at work\xe2\x80\x94in accordance with international medical protocols for\ntreating GID. Soon thereafter, Smith\xe2\x80\x99s co-workers began questioning him about his appearance\nand commenting that his appearance and mannerisms were not \xe2\x80\x9cmasculine enough.\xe2\x80\x9d As a result,\nSmith notified his immediate supervisor, Defendant Thomas Eastek, about his GID diagnosis and\ntreatment. He also informed Eastek of the likelihood that his treatment would eventually include\ncomplete physical transformation from male to female. Smith had approached Eastek in order to\nanswer any questions Eastek might have concerning his appearance and manner and so that Eastek\n50\n\n\x0ccould address Smith\xe2\x80\x99s co-workers\xe2\x80\x99 comments and inquiries. Smith specifically asked Eastek, and\nEastek promised, not to divulge the substance of their conversation to any of his superiors,\nparticularly to Defendant Walter Greenamyer, Chief of the Fire Department. In short order,\nhowever, Eastek told Greenamyer about Smith\xe2\x80\x99s behavior and his GID.\nGreenamyer then met with Defendant C. Brooke Zellers, the Law Director for the City of Salem,\nwith the intention of using Smith\xe2\x80\x99s transsexualism and its manifestations as a basis for terminating\nhis employment. On April 18, 2001, Greenamyer and Zellers arranged a meeting of the City\xe2\x80\x99s\nexecutive body to discuss Smith and devise a plan for terminating his employment. The executive\nbody included Defendants Larry D. DeJane, Salem\xe2\x80\x99s mayor; James A. Armeni, Salem\xe2\x80\x99s auditor;\nand Joseph S. Julian, Salem\xe2\x80\x99s service director. Also present was Salem Safety Director Henry L.\nWillard, now deceased, who was never a named defendant in this action.\n...\nDuring the meeting, Greenamyer, DeJane, and Zellers agreed to arrange for the Salem Civil\nService Commission to require Smith to undergo three separate psychological evaluations with\nphysicians of the City\xe2\x80\x99s choosing. They hoped that Smith would either resign or refuse to comply.\nIf he refused to comply, Defendants reasoned, they could terminate Smith\xe2\x80\x99s employment on the\nground of insubordination. Willard, who remained silent during the meeting, telephoned Smith\nafterwards to inform him of the plan, calling Defendants\xe2\x80\x99 scheme a \xe2\x80\x9cwitch hunt.\xe2\x80\x9d\nTwo days after the meeting, on April 20, 2001, Smith\xe2\x80\x99s counsel telephoned DeJane to advise him\nof Smith\xe2\x80\x99s legal representation and the potential legal ramifications for the City if it followed\nthrough on the plan devised by Defendants during the April 18 meeting. On April 22, 2001, Smith\nreceived his \xe2\x80\x9cright to sue\xe2\x80\x9d letter from the U.S. Equal Employment Opportunity Commission\n(\xe2\x80\x9cEEOC\xe2\x80\x9d). Four days after that, on April 26, 2001, Greenamyer suspended Smith for one twentyfour hour shift, based on his alleged infraction of a City and/or Fire Department policy.\n...\n\nII. ANALYSIS\nOn appeal, Smith contends that the district court erred in holding that: (1) he failed to state a claim\nof sex stereotyping; [and] (2) Title VII protection is unavailable to transsexuals. . . .\n\n51\n\n\x0c1. Sex Stereotyping\nTitle VII of the Civil Rights Act of 1964 provides, in relevant part, that \xe2\x80\x9c[i]t shall be an unlawful\nemployment practice for an employer ... to discriminate against any individual with respect to his\ncompensation, terms, conditions, or privileges of employment because of such individual\xe2\x80\x99s race,\ncolor, religion, sex, or national origin.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e\xe2\x80\x932(a).\nIn his complaint, Smith asserts Title VII claims of retaliation and employment discrimination\n\xe2\x80\x9cbecause of ... sex.\xe2\x80\x9d The district court dismissed Smith\xe2\x80\x99s Title VII claims on the ground that he\nfailed to state a claim for sex stereotyping pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228,\n109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The district court implied that Smith\xe2\x80\x99s claim was\ndisingenuous, stating that he merely \xe2\x80\x9cinvokes the term-of-art created by Price Waterhouse, that is,\n\xe2\x80\x98sex-stereotyping,\xe2\x80\x99 \xe2\x80\x9d as an end run around his \xe2\x80\x9creal\xe2\x80\x9d claim, which, the district court stated, was\n\xe2\x80\x9cbased upon his transsexuality.\xe2\x80\x9d The district court then held that \xe2\x80\x9cTitle VII does not prohibit\ndiscrimination based on an individual\xe2\x80\x99s transsexualism.\xe2\x80\x9d\nRelying on Price Waterhouse\xe2\x80\x94which held that Title VII\xe2\x80\x99s prohibition of discrimination \xe2\x80\x9cbecause\nof . . . sex\xe2\x80\x9d bars gender discrimination, including discrimination based on sex stereotypes\xe2\x80\x94Smith\ncontends on appeal that he was a victim of discrimination \xe2\x80\x9cbecause of ... sex\xe2\x80\x9d both because of his\ngender non-conforming conduct and, more generally, because of his identification as a transsexual.\nWe first address whether Smith has stated a claim for relief, pursuant to Price Waterhouse\xe2\x80\x99s\nprohibition of sex stereotyping, based on his gender non-conforming behavior and appearance. In\nPrice Waterhouse, the plaintiff, a female senior manager in an accounting firm, was denied\npartnership in the firm, in part, because she was considered \xe2\x80\x9cmacho.\xe2\x80\x9d 490 U.S. at 235, 109 S.Ct.\n1775. She was advised that she could improve her chances for partnership if she were to take \xe2\x80\x9ca\ncourse at charm school,\xe2\x80\x9d \xe2\x80\x9cwalk more femininely, talk more femininely, dress more femininely,\nwear make-up, have her hair styled, and wear jewelry.\xe2\x80\x9d Id. (internal quotation marks omitted). Six\nmembers of the Court agreed that such comments bespoke gender discrimination, holding that\nTitle VII barred not just discrimination because Hopkins was a woman, but also sex stereotyping\xe2\x80\x94\nthat is, discrimination because she failed to act like a woman. Id. at 250\xe2\x80\x9351, 109 S.Ct. 1775\n(plurality opinion of four Justices); id. at 258\xe2\x80\x9361, 109 S.Ct. 1775 (White, J., concurring); id. at\n272\xe2\x80\x9373, 109 S.Ct. 1775 (O\xe2\x80\x99Connor, J., concurring) (accepting plurality\xe2\x80\x99s sex stereotyping analysis\nand characterizing the \xe2\x80\x9cfailure to conform to [gender] stereotypes\xe2\x80\x9d as a discriminatory criterion;\nconcurring separately to clarify the separate issues of causation and allocation of the burden of\nproof). As Judge Posner has pointed out, the term \xe2\x80\x9cgender\xe2\x80\x9d is one \xe2\x80\x9cborrowed from grammar to\ndesignate the sexes as viewed as social rather than biological classes.\xe2\x80\x9d Richard A. Posner, Sex and\nReason, 24\xe2\x80\x9325 (1992). The Supreme Court made clear that in the context of Title VII,\ndiscrimination because of \xe2\x80\x9csex\xe2\x80\x9d includes gender discrimination: \xe2\x80\x9cIn the context of sex\nstereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or\nthat she must not be, has acted on the basis of gender.\xe2\x80\x9d Price Waterhouse, 490 U.S. at 250, 109\nS.Ct. 1775. The Court emphasized that \xe2\x80\x9cwe are beyond the day when an employer could evaluate\nemployees by assuming or insisting that they matched the stereotype associated with their group.\xe2\x80\x9d\nId. at 251, 109 S.Ct. 1775.\n52\n\n\x0cSmith contends that the same theory of sex stereotyping applies here. His complaint sets forth the\nconduct and mannerisms which, he alleges, did not conform with his employers\xe2\x80\x99 and co-workers\xe2\x80\x99\nsex stereotypes of how a man should look and behave. Smith\xe2\x80\x99s complaint states that, after being\ndiagnosed with GID, he began to express a more feminine appearance and manner on a regular\nbasis, including at work. The complaint states that his co-workers began commenting on his\nappearance and mannerisms as not being masculine enough; and that his supervisors at the Fire\nDepartment and other municipal agents knew about this allegedly unmasculine conduct and\nappearance. The complaint then describes a high-level meeting among Smith\xe2\x80\x99s supervisors and\nother municipal officials regarding his employment. Defendants allegedly schemed to compel\nSmith\xe2\x80\x99s resignation by forcing him to undergo multiple psychological evaluations of his gender\nnon-conforming behavior. The complaint makes clear that these meetings took place soon after\nSmith assumed a more feminine appearance and manner and after his conversation about this with\nEastek. In addition, the complaint alleges that Smith was suspended for twenty-four hours for\nallegedly violating an unenacted municipal policy, and that the suspension was ordered in\nretaliation for his pursuing legal remedies after he had been informed about Defendants\xe2\x80\x99 plan to\nintimidate him into resigning. In short, Smith claims that the discrimination he experienced was\nbased on his failure to conform to sex stereotypes by expressing less masculine, and more feminine\nmannerisms and appearance.\nHaving alleged that his failure to conform to sex stereotypes concerning how a man should look\nand behave was the driving force behind Defendants\xe2\x80\x99 actions, Smith has sufficiently pleaded\nclaims of sex stereotyping and gender discrimination.\nIn so holding, we find that the district court erred in relying on a series of pre-Price Waterhouse\ncases from other federal appellate courts holding that transsexuals, as a class, are not entitled to\nTitle VII protection because \xe2\x80\x9cCongress had a narrow view of sex in mind\xe2\x80\x9d and \xe2\x80\x9cnever considered\nnor intended that [Title VII] apply to anything other than the traditional concept of sex.\xe2\x80\x9d Ulane v.\nEastern Airlines, Inc., 742 F.2d 1081, 1085, 1086 (7th Cir.1984); see also Holloway v. Arthur\nAndersen & Co., 566 F.2d 659, 661\xe2\x80\x9363 (9th Cir.1977) (refusing to extend protection of Title VII\nto transsexuals because discrimination against transsexuals is based on \xe2\x80\x9cgender\xe2\x80\x9d rather than \xe2\x80\x9csex\xe2\x80\x9d).\nIt is true that, in the past, federal appellate courts regarded Title VII as barring discrimination based\nonly on \xe2\x80\x9csex\xe2\x80\x9d (referring to an individual\xe2\x80\x99s anatomical and biological characteristics), but not on\n\xe2\x80\x9cgender\xe2\x80\x9d (referring to socially-constructed norms associated with a person\xe2\x80\x99s sex). See, e.g., Ulane,\n742 F.2d at 1084 (construing \xe2\x80\x9csex\xe2\x80\x9d in Title VII narrowly to mean only anatomical sex rather than\ngender); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir.1982) (holding that\ntranssexuals are not protected by Title VII because the \xe2\x80\x9cplain meaning\xe2\x80\x9d must be ascribed to the\nterm \xe2\x80\x9csex\xe2\x80\x9d in the absence of clear congressional intent to do otherwise); Holloway, 566 F.2d at\n661\xe2\x80\x9363 (refusing to extend protection of Title VII to transsexuals because discrimination against\ntranssexualism is based on \xe2\x80\x9cgender\xe2\x80\x9d rather than \xe2\x80\x9csex;\xe2\x80\x9d and \xe2\x80\x9csex\xe2\x80\x9d should be given its traditional\ndefinition based on the anatomical characteristics dividing \xe2\x80\x9corganisms\xe2\x80\x9d and \xe2\x80\x9cliving beings\xe2\x80\x9d into\nmale and female). In this earlier jurisprudence, male-to-female transsexuals (who were the\nplaintiffs in Ulane, Sommers, and Holloway )\xe2\x80\x94as biological males whose outward behavior and\nemotional identity did not conform to socially-prescribed expectations of masculinity\xe2\x80\x94were\ndenied Title VII protection by courts because they were considered victims of \xe2\x80\x9cgender\xe2\x80\x9d rather than\n\xe2\x80\x9csex\xe2\x80\x9d discrimination.\n53\n\n\x0cHowever, the approach in Holloway, Sommers, and Ulane\xe2\x80\x94and by the district court in this case\xe2\x80\x94\nhas been eviscerated by Price Waterhouse. See Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th\nCir.2000) (\xe2\x80\x9cThe initial judicial approach taken in cases such as Holloway [and Ulane] has been\noverruled by the logic and language of Price Waterhouse.\xe2\x80\x9d). By holding that Title VII protected a\nwoman who failed to conform to social expectations concerning how a woman should look and\nbehave, the Supreme Court established that Title VII\xe2\x80\x99s reference to \xe2\x80\x9csex\xe2\x80\x9d encompasses both the\nbiological differences between men and women, and gender discrimination, that is, discrimination\nbased on a failure to conform to stereotypical gender norms.\nAfter Price Waterhouse, an employer who discriminates against women because, for instance, they\ndo not wear dresses or makeup, is engaging in sex discrimination because the discrimination would\nnot occur but for the victim\xe2\x80\x99s sex. It follows that employers who discriminate against men because\nthey do wear dresses and makeup, or otherwise act femininely, are also engaging in sex\ndiscrimination, because the discrimination would not occur but for the victim\xe2\x80\x99s sex. . . .\nYet some courts have held that this latter form of discrimination is of a different and somehow\nmore permissible kind. For instance, the man who acts in ways typically associated with women\nis not described as engaging in the same activity as a woman who acts in ways typically associated\nwith women, but is instead described as engaging in the different activity of being a transsexual\n(or in some instances, a homosexual or transvestite). Discrimination against the transsexual is then\nfound not to be discrimination \xe2\x80\x9cbecause of . . . sex,\xe2\x80\x9d but rather, discrimination against the plaintiff\xe2\x80\x99s\nunprotected status or mode of self-identification. In other words, these courts superimpose\nclassifications such as \xe2\x80\x9ctranssexual\xe2\x80\x9d on a plaintiff, and then legitimize discrimination based on the\nplaintiff\xe2\x80\x99s gender non-conformity by formalizing the non-conformity into an ostensibly\nunprotected classification. See, e.g., Dillon v. Frank, No. 90\xe2\x80\x932290, 1992 WL 5436 (6th Cir. Jan.15,\n1992).\nSuch was the case here: despite the fact that Smith alleges that Defendants\xe2\x80\x99 discrimination was\nmotivated by his appearance and mannerisms, which Defendants felt were inappropriate for his\nperceived sex, the district court expressly declined to discuss the applicability of Price\nWaterhouse. The district court therefore gave insufficient consideration to Smith\xe2\x80\x99s well-pleaded\nclaims concerning his contra-gender behavior, but rather accounted for that behavior only insofar\nas it confirmed for the court Smith\xe2\x80\x99s status as a transsexual, which the district court held precluded\nSmith from Title VII protection.\nSuch analyses cannot be reconciled with Price Waterhouse, which does not make Title VII\nprotection against sex stereotyping conditional or provide any reason to exclude Title VII coverage\nfor non sex-stereotypical behavior simply because the person is a transsexual. As such,\ndiscrimination against a plaintiff who is a transsexual\xe2\x80\x94and therefore fails to act and/or identify\nwith his or her gender\xe2\x80\x94is no different from the discrimination directed against Ann Hopkins in\nPrice Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping\nbased on a person\xe2\x80\x99s gender non-conforming behavior is impermissible discrimination, irrespective\nof the cause of that behavior; a label, such as \xe2\x80\x9ctranssexual,\xe2\x80\x9d is not fatal to a sex discrimination\nclaim where the victim has suffered discrimination because of his or her gender non-conformity.\n54\n\n\x0cAccordingly, we hold that Smith has stated a claim for relief pursuant to Title VII\xe2\x80\x99s prohibition of\nsex discrimination.\nFinally, we note that, in its opinion, the district court repeatedly places the term \xe2\x80\x9csex stereotyping\xe2\x80\x9d\nin quotation marks and refers to it as a \xe2\x80\x9cterm of art\xe2\x80\x9d used by Smith to disingenuously plead\ndiscrimination because of transsexualism. Similarly, Defendants refer to sex stereotyping as \xe2\x80\x9cthe\nPrice Waterhouse loophole.\xe2\x80\x9d (Appellees\xe2\x80\x99 Brief at 6.) These characterizations are almost identical\nto the treatment that Price Waterhouse itself gave sex stereotyping in its briefs to the U.S. Supreme\nCourt. As we do now, the Supreme Court noted the practice with disfavor, stating:\nIn the specific context of sex stereotyping, an employer who acts on the basis\nof a belief that a woman cannot be aggressive, or that she must not be, has acted\non the basis of gender. Although the parties do not overtly dispute this last\nproposition, the placement by Price Waterhouse of \xe2\x80\x9csex stereotyping\xe2\x80\x9d in\nquotation marks throughout its brief seems to us an insinuation either that such\nstereotyping was not present in this case or that it lacks legal relevance. We\nreject both possibilities.\nPrice Waterhouse, 490 U.S. at 250, 109 S.Ct. 1775.\n\nNotes and Questions\n1.\nHively revisited: The court in Smith notes that the district court below and other courts had\nrelied on such cases as Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085-1086 (7th Cir. 1984)\nfor the proposition that \xe2\x80\x9ctranssexuals, as a class, are not entitled to Title VII protection. . . .\xe2\x80\x9d See\nalso Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1221 (10th Cir. 2007) (agreeing with Ulane\nthat \xe2\x80\x9cdiscrimination against a transsexual based on the person\xe2\x80\x99s status as a transsexual is not\ndiscrimination because of sex under Title VII\xe2\x80\x9d). However, agreeing with the Ninth Circuit, the\nSixth Circuit opines that Price Waterhouse has eviscerated the logic of Ulane and similar\ndecisions. Ulane was decided by the Seventh Circuit, the same court that decided Hively, which\nheld that Title VII prohibits sexual orientation discrimination. Considering the reasoning of the\nmajority opinion in Hively, do you think if it again addressed the issue of gender identity\ndiscrimination, that the court would overrule Ulane?\n2.\nSex Stereotypes and Transgender Employees: The Sixth Circuit in Smith held that\ndiscrimination against Jimmie Smith because of gender nonconformity violated Title VII. He did\nnot lose that protection because he was transsexual. Relying on Price Waterhouse, numerous\ncourts have held similarly. See e.g. Glenn v. Brumby, 663 F.3d 1312, 1318 & n.5 (11th Cir. 2011)\n(collecting cases); Lopez v. River Oaks Imaging, 542 F. Supp.2d 653 (S.D. Tex. 2008) (\xe2\x80\x9cTitle VII\nis violated when an employer discriminates against any employee, transsexual or not, because he\nor she has failed to act or appear sufficiently masculine or feminine enough for an employer;\xe2\x80\x9d and\ncollecting cases reaching similar conclusions). But see Etsitty v. Utah Transit Authority, 502 F.3d\n1215, 1224-26 (10th Cir. 2007) (assuming without deciding that a pre-operative transgender\n55\n\n\x0cwoman had \xe2\x80\x9cestablished a prima facie case under the Price Waterhouse theory of gender\nstereotyping\xe2\x80\x9d but rejecting her claim because she failed to show her termination actually stemmed\nfrom failing to conform to sex stereotypes).\n3.\nTransgender Status/Identity or Conduct: The Smith court explained that \xe2\x80\x9cdiscrimination\nagainst a plaintiff who is a transsexual\xe2\x80\x94and therefore fails to act and/or identify with his or her\ngender\xe2\x80\x94is no different from the discrimination directed against Ann Hopkins in Price\nWaterhouse. . . .\xe2\x80\x9d Did the court hold that Jimmie Smith was protected under Title VII because of\nhis transsexual status/identity or because of his gender nonconforming conduct? Would the result\nin the case have been the same if Smith\xe2\x80\x99s supervisor heard rumors that Smith was transsexual and\nfired him because of it? The version of Smith as it appears in this Chapter is an \xe2\x80\x9cAmended\nOpinion.\xe2\x80\x9d The court\xe2\x80\x99s initial opinion had been issued a few months earlier and was subsequently\nvacated. The initial opinion contained the following paragraph, which was excluded from the\nAmended Opinion:\nEven if Smith had alleged discrimination based only on his self-identification as a\ntranssexual-s opposed to his specific appearance and behavior-this claim too is\nactionable pursuant to Title VII. By definition, transsexuals are individuals who fail\nto conform to stereotypes about how those assigned a particular sex at birth should\nact, dress, and self-identify. Ergo, identification as a transsexual is the statement or\nadmission that one wishes to be the opposite sex or does not relate to one\'s birth\nsex. Such an admission-for instance the admission by a man that he self-identifies\nas a woman and/or that he wishes to be a woman-itself violates the prevalent sex\nstereotype that a man should perceive himself as a man. Discrimination based on\ntranssexualism is rooted in the insistence that sex (organs) and gender (social\nclassification of a person as belonging to one sex or the other) coincide. This is the\nvery essence of sex stereotyping.\nSmith v. City of Salem, Ohio, 369 F.3d 912 (6th Cir. 2004), vacated and superseded by 378 F.3d\n566 (6th Cir. 2004). Isn\xe2\x80\x99t discrimination against a transgender person per se unlawful under Title\nVII because it is based on the sex stereotype that a person\xe2\x80\x99s gender identity and expression should\nmatch the sex he or she was assigned at birth? Under that reasoning, individuals designated male\nat birth should identity as male as well as express a masculine behavior and appearance. Similarly,\nindividuals designated female at birth should identity as female and express feminine traits? Why\ndo you believe the court deleted this paragraph from the amended opinion?\nAlthough the weight of authority recognizes that Title VII protects transgender individuals,\nlike everyone else, there is disagreement on whether transgender status is protected. Compare\nEtsitty v. Utah Transit Authority, 502 F.3d 1215, 1224-26 (10th Cir. 2007) (discrimination based\non transsexual status not protected under Title VII but claim based on sex stereotyping regarding\nhow a man or woman \xe2\x80\x9cshould act or appear\xe2\x80\x9d is cognizable) and Creed v. Family Express Corp.,\nNo. 3:06-CV-465RM, 2009 WL 35237, at *6 (Jan. 5, 2009) (\xe2\x80\x9cAlthough discrimination because\none\xe2\x80\x99s behavior doesn\xe2\x80\x99t conform to stereotypical ideas of one\xe2\x80\x99s gender may amount to actionable\ndiscrimination based on sex, harassment based on sexual preference or transgender status does\n56\n\n\x0cnot.\xe2\x80\x9d) with Roberts v. Clark County School Dist., 312 F.R.D. 594, 605-06 (D. Nev. 2016) (agreeing\nwith position taken by the EEOC that \xe2\x80\x9cclaims of discrimination based on transgender status, also\nreferred to as claims of discrimination based on gender identity, are cognizable under Title VII\xe2\x80\x99s\nsex discrimination prohibition\xe2\x80\x9d).\n4.\nAmericans with Disabilities Act: Jimmie Smith was diagnosed with Gender Identity\nDisorder (\xe2\x80\x9cGID\xe2\x80\x9d). The American Psychiatric Association replaced that term with the term \xe2\x80\x9cGender\nDysphoria\xe2\x80\x9d in the most recent Diagnostic and Statistical Manual of Mental Disorders (\xe2\x80\x9cDSM-5\xe2\x80\x9d).\nSee Kothmann v. Rosario, 558 Fed.Appx. 907, 907 & n.2 (11th Cir. 2014) (per curiam). The\nchange, in part, was because disorder characterized all transgender people as mentally ill; yet,\nmany transgender people do not suffer distress between their identity and their birth sex and\ntherefore should not all be pathologized. See id.; see also Camille Beredjick, DSM-V to Rename\nGender Identity Disorder \xe2\x80\x98Gender Dysphoria\xe2\x80\x99, The Advocate (July 23, 2012),\nhttp://www.advocate.com/politics/transgender/2012/07/23/dsm-replaces-gender-identitydisorder-gender-dysphoria.\nConsidering that Gender Dysphoria is included in the DSM-V, why didn\xe2\x80\x99t Smith allege\ndiscrimination on the basis of disability under the Americans with Disabilities Act? See 42 U.S.C.\n\xc2\xa7 12211(a)-(b).\n5.\n\nDress Codes and Gender Expression: According to the court in Smith:\nAfter Price Waterhouse, an employer who discriminates against women because,\nfor instance, they do not wear dresses or makeup, is engaging in sex discrimination\nbecause the discrimination would not occur but for the victim\xe2\x80\x99s sex. It follows that\nemployers who discriminate against men because they do wear dresses and\nmakeup, or otherwise act femininely, are also engaging in sex discrimination,\nbecause the discrimination would not occur but for the victim\xe2\x80\x99s sex.\n\nSmith, 378 F.3d at 574.\nDoes Smith hold that employers are prohibited from imposing different dress and grooming\nstandards on men and women in the workplace? If an employer forbids its employees who are men\nfrom wearing, say earrings or long hair, while permitting its employees who are women to do so,\nhas the employer violated Title VII? One district court has read Smith as holding just that. See\nEEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp.3d 837, 853 (E.D. Mich. 2016)\n(\xe2\x80\x9cIt appears unlikely that the Smith court would allow an employer . . . to avoid liability for a Title\nVII sex-stereotyping claim simply by virtue of having put its gender-based stereotypes into a\nformal policy.\xe2\x80\x9d).\nWould you agree that forbidding employers from imposing gendered dress and grooming\nstandards would bode well for transgender employees? Employees would then be permitted to\ndress and appear in the workplace in ways that match their gender identity and the manner in which\nthey choose to express their identity.\n57\n\n\x0cYou may already have covered the issue of employee dress codes and grooming standards\nearlier in your course. Although the rationales may differ, most courts have not read Price\nWaterhouse so broadly as to forbid employers from imposing dress and grooming standards\nalthough they may contain some gendered distinctions. Compare Jespersen v. Harrah\xe2\x80\x99s Operating\nCo., 444 F.3d 1104 (9th Cir. 2006) (en banc) (rejecting challenge to employer dress and grooming\ncode that required female employee to wear make-up; code did not impose unequal burdens on\neither men or women and caused no objective harm to the plaintiff) with Wiseley v. Harrah\xe2\x80\x99s\nEntertainment, Inc., No. 2004 WL 1739724, at *5 (D. N.J. Aug. 4, 2004) (stating that \xe2\x80\x9cone\'s\npersonal appearance and dress is sufficiently within one\'s control such that it is easily alterable\nwhile Title VII aims at policies that specifically discriminate on the basis of immutable\ncharacteristics that are a fundamental aspect of that person\xe2\x80\x9d).\nHow do you reconcile Smith\xe2\x80\x99s reading of Price Waterhouse with cases that permit\nemployers to adopt dress and grooming codes that contain gender distinctions? Can they be\nreconciled?\n\nB.\n\nAn alternative route to protecting transgender employees\n\nAs the previous section explains, numerous courts have held that transgender employees\nmay pursue sex discrimination claims based on their failure to conform to sex stereotypes. Recent\nauthority has considered a more direct route to protecting transgender individuals under Title VII,\nfinding that discrimination based on gender transition is literally discrimination because of sex.\nThe EEOC adopted this position in Macy v. Holder, 2012 WL 1435995 (E.E.O.C. 2012).\nIn that case, Mia Holder applied for a position while still presenting as a man. She alleged that she\nhad almost been assured the job was hers pending a background check. During the hiring process\nshe informed her future employer that she was in the process of transitioning from male to female\nand shortly thereafter she was informed that someone else had been hired for the position. She\nfiled a complaint alleging discrimination on the basis of \xe2\x80\x9csex,\xe2\x80\x9d \xe2\x80\x9cgender identity," and \xe2\x80\x9csex\nstereotyping.\xe2\x80\x9d\nAddressing her claim, the EEOC explained that discrimination against transgender\nindividuals violates Title VII\xe2\x80\x99s proscription against sex discrimination in a number of ways. First,\nthe EEOC found support for its position in Price Waterhouse. See id. at *10. To that end, the\nEEOC explained that \xe2\x80\x9cComplainant could establish a case of sex discrimination under a theory of\ngender stereotyping by showing that she did not get the job . . . because the employer believed that\nbiological men should consistently present as men and wear male clothing.\xe2\x80\x9d Id.\nIn addition, the EEOC explained that a sex discrimination claim would lie where the\nComplainant proved that the employer would have hired her when it thought she was a man but\nwould not do so after it found out that she was now a woman. Id. Such discrimination would not\nhave occurred but for the sex of the individual and the action would violate Title VII without\nreference to sex stereotyping. See id. at 11. In this regard, the EEOC likened sex discrimination to\nreligious discrimination.\n58\n\n\x0cAssume that an employee considers herself Christian and identifies as such. But\nassume that an employer finds out that the employee\xe2\x80\x99s parents are Muslim, believes\nthat the employee should therefore be Muslim, and terminates the employee on that\nbasis. No one would doubt that such an employer discriminated on the basis of\nreligion. There would be no need for the employee who experienced the adverse\nemployment action to demonstrate that the employer acted on the basis of some\nreligious stereotype--although, clearly, discomfort with the choice made by the\nemployee with regard to religion would presumably be at the root of the employer\xe2\x80\x99s\nactions. But for purposes of establishing a prima facie case that Title VII has been\nviolated, the employee simply must demonstrate that the employer impermissibly\nused religion in making its employment decision.\nId.\nRelying on the aforementioned hypothetical, the EEOC determined that if an employer\nwould have hired an employee who is male but refuses to do so upon finding out the employee is\na woman, the employer violates Title VII.\nConsistent with an earlier judicial decision, Shroer v. Billington, 577 F. Supp. 2d 293 (D.\nD.C. 2008) adopting a similar approach to claims by transgender employees, the EEOC relied on\nyet another religious discrimination hypothetical to demonstrate why discrimination against\ntranssexual employees violates Title VII. According to the Schroer court,\n[i]magine that an employee is fired because she converts from Christianity to\nJudaism. Imagine too that her employer testifies that he harbors no bias toward\neither Christians or Jews but only \xe2\x80\x98converts.\xe2\x80\x99 That would be a clear case of\ndiscrimination \xe2\x80\x98because of religion.\xe2\x80\x99 No court would take seriously the notion\nthat \xe2\x80\x98converts\xe2\x80\x99 are not covered by the statute. Discrimination \xe2\x80\x9cbecause of\nreligion\xe2\x80\x9d easily encompasses discrimination because of a change of religion.\nId. (citing Shroer, 577 F. Supp. 2d at 308).\nIn the context of sex, the employer is not absolved by showing that it would hire a man or\na woman, but not a \xe2\x80\x9cconvert.\xe2\x80\x9d The employer has taken the employee\xe2\x80\x99s sex into account when\nmaking the employment decision. See id.; see also 42 U.S.C. \xc2\xa7 2000e-2(m) (employer violates\nTitle VII where the employer\xe2\x80\x99s action is motivated by the employee\xe2\x80\x99s \xe2\x80\x9csex\xe2\x80\x9d). Do you find the sexbased conversion argument persuasive?\nProblem 5\nSandy\nJerry Carmichael was hired to work for Hand-Me-Down Thrift Store as an inventory clerk\nby store manager Tim Hathaway. Jerry\xe2\x80\x99s job entailed keeping track of and ordering\ninventory. Jerry stands 6\xe2\x80\x992\xe2\x80\x9d and weighs 195 lbs., and when he was hired, he presented as a\n59\n\n\x0cman. Hand-Me-Down has a strict dress code and grooming policy for its employees. The policy\nrequires both men and women to wear black jeans, white-collared shirts and black shoes. It,\nhowever, forbids men from wearing make-up and nail polish although women could wear\nboth. Men are also required to keep their hair no longer than collar-length. Women are permitted\nto wear their hair longer. Throughout the year, Jerry adhered to the dress code and worked hard,\nand Tim gave him a favorable employment evaluation at the end of the year.\nPrior to joining Hand-Me-Down Jerry was diagnosed with Gender Dysphoria. For some\ntime, he also had been working with a licensed clinical social worker on a plan to transition from\nmale to female and he was at the stage in the process where he wanted to begin wearing feminine\nattire, presenting as a woman on a full-time basis and going by the name Sandy.\nA little more than a year after being hired to work as Jerry, Sandy explained her Gender\nDysphoria diagnosis and her transition process to Tim, who responded that while he did not have\na problem with any of it, he was not sure that others would understand. Sandy also told Tim that\nshe would adhere to the store\xe2\x80\x99s dress and grooming standards for women because it was part of\nher transition process. Over the next several months, Sandy went to work dressing in women\xe2\x80\x99s\nclothing. She let her hair grow out and it eventually reached shoulder length. She began wearing\nmake-up and polishing her nails red. She also asked that her coworkers call her Sandy and refer\nto her using female pronouns, which they did for the most part. Sandy also began using the\nwomen\xe2\x80\x99s bathroom. Hand-Me-Down had two multi-user bathrooms, one designated for women\nand the other for men. Employees and customers were permitted to use them. To alleviate any\npotential concerns, Sandy would try to use the bathroom when she was sure no one else was in\nthere. However, that was not always possible. Several times she ran into other female employees\nor customers in the bathroom. More than once she was greeted with a confused look. Several\ncustomers began to complain to Tim that \xe2\x80\x9ca man wearing a dress was using the lady\xe2\x80\x99s\nbathroom.\xe2\x80\x9d Some said that they worried about their safety and would no longer shop at Hand-MeDown if the bathrooms were now unisex. Tim told Sandy about the complaints and asked her\nwhether she \xe2\x80\x9cstill had her man parts?\xe2\x80\x9d He said that if she hadn\xe2\x80\x99t yet had the operation, then she\ncould no longer use the women\xe2\x80\x99s bathroom. Instead, she would either have to use the men\xe2\x80\x99s\nbathroom or to use the bathroom at a gas station that was a block away from the store. In addition,\nTim also said that he had received complaints about the way Sandy dressed. He told her that she\nwould have to cut her hair so that it was above the collar and also told her to try to look \xe2\x80\x9cmore\nmanly\xe2\x80\x9d or that she would be fired. Tim told her to think about what he had said overnight. When\nSandy arrived at work the next day, her hair was still long, she still wore makeup and her nails\nwere polished red. Tim fired her.\nSandy believes that she was discriminated against while working at Hand-Me-Down\nbecause she is transgender. She comes to you for advice. What do you tell her?\n\n60\n\n\x0cAppendix\nState\n\nSexual\nGender\nOrientation Identity\n\nStatutory Provision2\n\n1. California\n2. Colorado\n3. Connecticut\n\nYes\xe2\x80\x94P/P3\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\n4. Delaware\n5. District of\nColumbia\n6. Hawaii\n7. Illinois\n8. Iowa\n9. Maine\n10. Maryland\n11. Massachusetts\n12. Minnesota\n13. Nevada\n14. New Hampshire\n15. New Jersey\n16. New Mexico\n17. New York\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\nCal. Gov. Code \xc2\xa7\xc2\xa712920, 12926, 12940\nColo. Rev. Stat. \xc2\xa7\xc2\xa724-34-402\nConn. Gen. Stat. \xc2\xa7\xc2\xa746a-81c, 46a-60;\nPublic Act 91-58, \xc2\xa73\nDel. Code. Title 19, \xc2\xa7711\nD.C. Code Ann. \xc2\xa7 2-1402.11\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nNo\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\n18. Oregon\n19. Rhode Island\n20. Utah\n21. Vermont\n22. Washington\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\nYes\xe2\x80\x94P/P\n\n23. Wisconsin\n\nYes\xe2\x80\x94P/P\n\nNo\n\nHaw. Rev. Stat. \xc2\xa7378-2\n775 Ill. Comp. Stat. 5/1-102, 1-103\nIowa Code \xc2\xa7216.6\nMe. Rev. Stat. Ann. \xc2\xa74572\nMd. Code \xc2\xa720-606\nMass. Gen. Law 151B, \xc2\xa74\nMinn. Stat. \xc2\xa7363A.02, 363A.08\nNev. Rev. Stat. \xc2\xa7613.330\nN.H. Rev. Stat. \xc2\xa7354-A:7\nN.J. Stat. \xc2\xa710:5-12\nN.M. Stat. Ann. \xc2\xa728-1-7\nN.Y. Exec. Law \xc2\xa7 296; N.Y. Exec. Law\nApp. \xc2\xa7466.13, Executive Order 33\nOr. Rev. Stat. \xc2\xa7\xc2\xa7659A.030, 174.100\nR.I. Gen. Law \xc2\xa728-5-7\nUtah Code Ann. \xc2\xa734A-5-106, S.B. 296\nVt. Stat. Ann. Title 21, \xc2\xa7495\nRev. Code Wash. Ann. \xc2\xa7\xc2\xa749.60.040,\n49.60.180\nWis. Stat. \xc2\xa7111.36\n\n2\n\nThere are several states that prohibit employment discrimination on the basis of sexual orientation and/or gender\nidentity in both public and private employment by executive order: Alaska (Administrative Order 195 (2002));\nArizona (Executive Order 2003-22 (2003)); Indiana (Indiana State Government Employment Policy Statement\n(2004); Kentucky (Executive Order 2008-473 (2008); Michigan (Executive Order 2003-24 (2003); Executive Order\n2007-24 (2004)); Missouri (Executive Order 10-24 (2010)); Montana (Executive Order 41-2008 (2008); Executive\nOrder 04-2016 (2016)); New Hampshire (Executive Order 2016-04 (2016)); New York (Executive Order 33\n(2009)); North Carolina (Executive Order 93 (2016)); Ohio (Executive Order 2007-105 (2007)); Pennsylvania\n(Executive Order 75-5 (1975); Executive Order 2003-10 (2003)); Virginia (Executive Order 1 (2014)).\n3\n\nP/P indicates statutory employment discrimination protections extend to both private and public employees.\n\n61\n\n\x0c'