HRC Blog

In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter. The right to earn a living is a fundamental and an integral part of our struggle for equality.  Although federal nondiscrimination laws protect people from employment discrimination based on race, color, sex, religion, and national origin, the LGBT community is not explicitly protected by federal law.  Fortunately, U.S. federal courts have found that existing federal nondiscrimination laws do protect the LGBT community in certain circumstances.  In a 1989 case called Price Waterhouse v. Hopkins, the United States Supreme Court found that using sex stereotypes to make an employment decision violates Title VII of the Civil Rights Act of 1964 (“Title VII”).  This set the stage for lower court judges, including Judge Sotomayor, to further explore the issue of sex stereotyping and discrimination based on non-conformity with gender norms. In 2006, Sotomayor was part of a three judge panel on the United States Court of Appeals for the Second Circuit which overturned the dismissal of a man’s employment discrimination claim.  The man, Gregory Miller, sued the City of New York under a variety of theories, including that he was subject to an impermissible hostile work environment under Title VII.  The Second Circuit order points to Miller’s sexual orientation as a gay man. According to Miller, his supervisor claimed Miller was not a “real man” and tried to “toughen him up” by assigning Miller work involving heavy lifting.  The district court dismissed Miller’s claim, finding that Miller did not offer sufficient evidence that he suffered discrimination on the basis of sex, as opposed to sexual orientation. The Second Circuit disagreed.  In a summary order, which is not attributable to any member of the panel, the Court vacated the district court’s dismissal of Miller’s hostile work environment claim.  While they agreed discrimination on the basis of sexual orientation is not actionable under Title VII, they held that sex stereotyping is actionable as discrimination on the basis of sex.  The Court found that Miller had presented enough evidence that he was discriminated against because of his failure to conform to gender norms to proceed with his case.  In vacating the district court’s decision, the Second Circuit allowed Miller to argue his case before a jury. The ability of the LGBT community to present discrimination claims based on failure to conform to gender norms is crucial to the advancement of federal non-discrimination law.  The Court’s, and by association, Sotomayor’s, ruling continued a line of positive decisions regarding sex stereotyping as a form of sex discrimination.  Her decision is a positive sign that Sotomayor would vigorously enforce non-discrimination laws that protect the LGBT community.   Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. Contributed by Human Rights Campaign Senior Counsel Cristina Finch