Currently no federal law exists that would prohibit employers from discriminating against employees on the basis of their sexual orientations. However, the EEOC has recently begun pursuing cases involving such discrimination under a theory that classifies these actions as gender discrimination. This theory revolves around the idea that some instances of sexual orientation discrimination are based upon an LGBT employee’s nonconformance to gender stereotypes.

In pursuing these claims, the EEOC has based its arguments on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, a female accountant was passed over for a partnership with her firm because she did not wear makeup or dress in a feminine manner. The Court ultimately held that the firm unlawfully discriminated against the accountant because its decision to deny her partnership was based on the accountant’s refusal to conform to gender stereotypes.

The EEOC asserts that this decision should be applicable to situations involving discriminatory acts against LGBT employees, and has quite a bit of merit. Let’s say, for example, that a gay man is terminated for exhibiting certain behavior that does not conform to general ideas of masculinity. If the employer would not have terminated a female employee for exhibiting the same type of behavior, the EEOC argues that the employer’s decision to terminate the gay employee violates Title VII’s prohibition against gender discrimination.

NPR recently covered a case in Wyoming that features the exact scenario above:

Josh Kronberg-Rasner was the only openly gay person in his office while he worked for a food service company in Casper, Wyo. But his sexual orientation never held him back, he says. “I had filled every position from general manager to executive chef,” he says. “You name it, I’d done all of it.”

That changed in the summer of 2012 when Kronberg-Rasner got a new manager, whom Kronberg-Rasner says was uncomfortable working with a gay person. A few weeks after he arrived, the manager went through Kronberg-Rasner’s personal phone and found pictures of a male gymnast. Soon after that, the company laid Kronberg-Rasner off.

Before Kronberg-Rasner was fired, his former manager discussed the photos he found on Kronberg-Rasner’s phone with a female employee who later told Kronberg-Rasner about it.“The manager said to her, ‘You know, he has this picture of a guy on his phone, and if you, as a woman, had this picture on your phone, it would have been OK. But Josh is a guy, and we can’t have that,’ ” Kronberg-Rasner says.

These types of claims have had favorable outcomes in some Federal Circuits, but the Supreme Court has not weighed in on the subject to date. However, the EEOC presents a strong argument for Title VII’s applicability in the context of sexual orientation discrimination where the discrimination centers around stereotypical gender behavior.
If you believe that you have been discriminated against by your employer because of your sexual orientation, or because you do not conform to “typical” gender stereotypes, you should seek the advice of counselimmediately to learn what legal options are available to you.