President Trump Keeps 2014 Executive Order

President Trump recently announced that he would leave in place a 2014 executive order expanding protections for federal workers and government contractors for discrimination based on sexual orientation. The 2014 executive order was in line with the EEOC’s recent position that an allegation of sexual orientation discrimination is necessarily an allegation of sex discrimination under Title VII. However, despite the EEOC’s position and all of the judicial victories on behalf of LGBTQ causes in recent years, it is explicitly the law of the Fourth Circuit, which includes Maryland and Virginia, that Title VII does not protect against discrimination based on sexual orientation. See Murray v. N. Carolina Dep’t of Pub. Safety, 611 Fed.Appx. 166 (4th Cir. 2015) (relying on Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 143 (4th Cir. 1996)).

A recent Virginia case, Hinton v. Virginia Union University, 185 F.Supp.3d 807 (E.D.Va. 2016), articulated the courts’ position with respect to the EEOC’s expanded interpretation of Title VII. Terry Hinton is an openly gay male who was employed as an administrative assistant at Virginia Union University (“VUU”) in Richmond. Mr. Hinton alleged that he was disciplined in August and September of 2013 because the then president of the University, Dr. Claude Perkins, did not like Hinton’s sexual orientation. Mr. Hinton filed a complaint against VUU asserting claims under Title VII for sex discrimination, retaliation, and retaliatory harassment among other claims. VUU moved to dismiss Hinton’s claim on the grounds that Title VII does not protect against discrimination based on sexual orientation and cited Wrightson. Conversely, Mr. Hinton argued that Wrightson was superseded by a July 2015 EEOC ruling that Title VII protects against discrimination based on sexual orientation.

Judge Payne was not persuaded. The court noted that “EEOC interpretations of Title VII are entitled to Skidmore deference at most—that is, ‘deference to the extent [that they have] the power to persuade.’” In other words, the EEOC does not make the law and just because it adapts a broader interpretation of what protected classes are covered under Title VII does not mean that federal courts are obliged to follow. Judge Payne also noted that the Fourth Circuit cited Wrightson approvingly even after the EEOC decision in Murray v. N. Carolina Dep’t of Pub. Safety, 611 Fed.Appx. 166 (4th Cir. 2015) and that “[i]t is not the province of unelected jurists” to amend Title VII to provide a claim for sexual orientation discrimination.

Despite the Fourth Circuit’s failure to adapt the EEOC’s broader interpretation of Title VII, Title VII still provides protections for LGBTQ people. Judge Payne noted in Henderson v. Labor Finders of Virginia, Inc., 2013 WL 1352158 (E.D.Va.) that, while Title VII does not afford a cause of action for discrimination based on sexual orientation, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their [gender] group.” Id. at 4. Judge Payne also noted the difficulty in drawing the distinction between discrimination on the basis of gender stereotyping and discrimination on the basis of sexual orientation because they are so often closely intertwined. For example, if a homosexual man acts in a way that is effeminate, he could be discriminated against on the basis of his failure to comply with accepted gender norms and such claims would constitute gender discrimination under Title VII.