The Fourth Circuit’s recent decision in Evangeline Parker v. Reema Consulting Services, Incorporated, 915 F.3d 297 (4th Cir. 2019) grabbed headlines for its controversial ruling that workplace gossip can support a sex harassment claim under Title VII, but the Court’s decision may also be a harbinger for a decision down the road recognizing sexual orientation bias as a form of sex-based discrimination under Title VII.
The Fourth Circuit Reinforces the View That Title VII Prohibits Gender-Stereotyping Through Workplace Gossip
Despite starting as a low-level clerk in Reema Consulting Services’ (“Reema” or the “Company”) warehouse, the plaintiff, Evangeline Parker (“Parker”), worked her way up to eventually become the Assistant Operations Manager at the Company. While Parker attributed her success to merit and hard work, some of her male coworkers and other members of management had spread a rumor that she was only promoted to a management position because she slept with a higher ranking male manager at the Company. In fact, the rumor was started by one particular male coworker who started at the Company as a clerk around the same time as Parker. Not only did Parker surpass this male coworker in seniority, but she also became his supervisor. As the rumor spread throughout the Company, up to and including other members of management, Parker was treated with increasing hostility. She was kept out of staff meetings, her supervisor blamed her for the rumor being spread, and she was told that she would not advance any further in the Company.
Parker complained to Human Resources, naming the male coworker as the harasser for starting and spreading the rumor and her supervisor for threatening her job because of the rumor. A few weeks later, the male coworker filed a sexual harassment complaint against Parker, claiming that she had created a hostile work environment for him. Reema took no action as a result of Parker’s complaint; however, Parker was instructed not to have any contact with the male coworker as a result of his complaint. Days later, Parker was issued a disciplinary action for her complaint against the male coworker and told that her employment was terminated.
Parker subsequently filed a three count complaint in the U.S. District Court for the District of Maryland against Reema alleging sex discrimination, hostile work environment, and retaliation in violation of Title VII. In response, the Company moved to dismiss her complaint arguing that Parker had not sufficiently alleged a hostile work environment based on sex. The Company argued that the rumor was not gender based, but rather was solely about Parker’s conduct, which according to the Company could have been levied against a male employee. The district court sided with the Company and dismissed the complaint.
Parker appealed the decision to the U.S. Court of Appeals for the Fourth Circuit, which overturned the district court’s ruling. The Fourth Circuit held that the district court failed to take into account the sex-based nature of the rumor as well as the inferences reasonably taken from the allegations in the complaint regarding sex stereotypes. The Court found that the rumor – that Parker, a female subordinate, slept with her male superior to obtain a promotion – implied that Parker had “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.” [1] This, the Court opined, emanated from the deeply rooted gender-based stereotype and double standard that women (not men) use sex to achieve success, and therefore, the complaint plausibly alleged that Parker suffered harassment because she is a woman.
The Genesis of LGBTQ Protections under Title VII via Gender-Stereotyping Prohibitions
Parker v. Reema was the first time that the Fourth Circuit acknowledged that gender stereotypes could give rise to a claim of sex discrimination under Title VII. Notably, almost thirty years prior, the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded on other grounds as stated in Burrage v. United States, 571 U.S. 204, 219 n.4 (2014), recognized gender stereotyping as a form of discrimination based on the theory that when an employer treats an employee differently for failing to conform with gender-based expectations or norms, the employer is engaging in sex based discrimination in violation of Title VII.
After Price Waterhouse, the EEOC in Macy v. Department of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), extended this theory to cases involving individuals who act or appear in gender-nonconforming ways, including sexual orientation and gender identity discrimination, despite the overwhelming majority of courts rejecting such claims under Title VII on the ground that the term “sex” in the 1964 statute referred only to binary male-female biological identity. The EEOC, however, maintained that “[i]f Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.” [2]
As this theory caught on, courts were faced with cases seeking reconsideration of the issue of whether sexual orientation or gender identity discrimination warranted protection under Title VII as a subset of sex discrimination. Many courts skirted the issue and others cited stare decisis to avoid recognizing the availability of the gender stereotyping theory as a valid method for establishing discrimination when, for example, a heterosexual woman failed to conform to stereotypes about how women should act or look, but not when a lesbian fails to conform to those same norms.
Despite this hesitancy, change appears to be coming. Several courts have taken this theory to its logical next step. Most recently, the Second Circuit decided in Zarda ex rel. Zarda v. Altitude Express Incorporated d/b/a Skydive Long Island, 883 F.3d 100 (2d Cir. 2018), that sexual orientation discrimination was a form of sex discrimination under Title VII. In an en banc decision, the Second Circuit, relying on Price Waterhouse, held that sexual orientation discrimination is motivated, at least in part, by sex and invariably predicated on assumptions and stereotypes about how persons of a certain sex should or should not behave. The court found that because sexual orientation is a function of the employee’s sex as well as the employee’s sexual attraction to individuals of the opposite sex, same sex or both, and because sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.
A year before Zarda ex rel. Zarda, the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), became the lead circuit to hold that sexual orientation discrimination was a subset of sex discrimination prohibited by Title VII. In that case, Hively, a lesbian who worked as an adjunct professor for Ivy Tech Community College, claimed that she was denied tenure because of her sexual orientation. Taking its lead from Price Waterhouse, the Seventh Circuit reasoned that all “gay, lesbian, and bisexual persons fail to comply with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.” [3] The Court noted that if Hively was a man attracted to a woman rather than a woman attracted to a woman, she would not have experienced discrimination. Thus, the court concluded that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.” [4]
In March 2018, the Sixth Circuit also expanded the scope of Title VII protection to include gender identity in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). In that case, the plaintiff, a transgender woman, was fired after telling her employer she was transitioning and would begin presenting as a woman at work. Like its sister circuits, the Sixth Circuit followed the Supreme Court’s reasoning in Price Waterhouse in holding that gender identity is protected by Title VII’s prohibition against sex discrimination in employment because discrimination against a transgender employee cannot be separated from discrimination on the basis of non-conformity with stereotypical gender norms.
Whether the Fourth Circuit will follow suit is anyone’s guess. Indeed, as recently as 2015, the Fourth Circuit ruled in Murray v. N. Carolina Department of Public Safety, 611 F. App’x 166 (4th Cir. 2015), that sexual orientation is not actionable under Title VII. Interestingly, the plaintiff in that case alleged a hostile work environment based on office gossip about his sexual orientation. However, decisions recognizing the gender stereotype theory, like the Fourth Circuit’s decision in Parker v. Reema, appear to be the jumping off point for expanding the coverage of Title VII to protect LGBTQ employees.
The Fourth Circuit’s analysis in Parker may indicate its willingness to overturn its own precedent regarding sexual orientation following in the footsteps of the Second, Sixth, and Seventh Circuits. The Fourth Circuit rooted the Parker decision in the Price Waterhouse analysis prohibiting sex discrimination against individuals for their failure to subscribe to gender norms. In determining that workplace gossip can amount to sex discrimination when the rumor’s genesis is gender stereotyping, the Fourth Circuit placed a new emphasis on the importance of protecting individuals from sex stereotyping. Indeed, the Fourth Circuit expressed its concern for the long held stereotype that women rely on their femininity to get ahead in the workplace. The Fourth Circuit has thus primed itself to apply this analysis to the long held gender stereotype that men should be attracted to women, and vice versa. If the Fourth Circuit continues to view discrimination based on gender stereotyping with a watchful eye, it may be willing to break away from its own precedent. However, if the Fourth Circuit decides to kick this can down the road, the issue may be decided for them. The Supreme Court recently agreed to review a trio of cases, including Zarda ex rel. Zarda, to decide if Title VII protects LGBTQ employees from being fired for their sexual orientation or transgender identity.
[1] Parker, 915 F.3d at 303.
[2] Macy, 2012 WL 1435995 at *6.
[3] Hively, 853 F.3d at 342.
[4] Id. at 350-51.
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