Late last year, the Eleventh Circuit Court of Appeals upheld summary judgment for the plaintiff, Vandiver Elizabeth Glenn, against her employer in a sex discrimination case [pdf].  Ms. Glenn alleged that she was fired from her job because she intended to transition from male to female.  The court noted that discrimination against a transgender employee because he/she does not conform to his/her gender is sex discrimination prohibited by law.  This is not a new proposition of law as the United States Supreme Court dealt with the issue of gender conformity more than two decades ago in Price Waterhouse v. Hopkins [pdf], where the Court found that a female accountant who had been passed over for partnership because she was macho and not feminine enough stated a claim for sex stereotyping.  The Eleventh Circuit’s decision highlights that employers must be cognizant of modern day sex stereotyping.

Although federal law prohibits discriminating against individuals based on gender nonconformity, the federal anti-discrimination statute, Title VII, does not list sexual orientation as a protected class.  Thus, last year, the Sixth Circuit Court of Appeals upheld summary judgment for the employer finding that sexual orientation was not protected under Title VII in Gilbert v. County Music Assn., Inc. [pdf].  In that case, the plaintiff, a homosexual individual, worked as a theater professional organizing award shows.  After he complained that he was threatened by another employee and called a homosexual slur, he alleged that he stopped receiving work.  The court noted that although sex stereotyping is a recognized form of gender discrimination, there was “not a single allegation that anyone discriminated based on his appearance or mannerisms for his gender non-conformity.”  This case highlights that under current federal law, an individual cannot establish sex discrimination based solely on the fact that the individual is homosexual.  However, employers must consider state and local laws regarding such discrimination as an increasing number of them are passing laws and ordinances that protect homosexuals from workplace discrimination and harassment.

So what should employers take away from these cases?  Employers are best advised to take action based on an employee’s work performance and select the most qualified individual.  Employers should review their policies and procedures including dress code policies to ensure that they are neutral.  Further, employers are encouraged to maintain an environment that supports a diverse culture.