2016

Last month, U.S. District Judge Dean Pregerson ruled, in a potentially significant decision, that sexual orientation discrimination claims should be treated as sex discrimination claims under Title IX of the Civil Rights Act of. The decision is in line with an Equal Employment Opportunity Commission ruling last summer that held that discrimination against an individual based on sexual orientation is “sex discrimination” and therefore prohibited under Title VII (a similar federal law that prohibits sex discrimination workplaces).

Haley Videckis and Layana White are two former members of Pepperdine University’s women’s basketball team. In 2014, they sued Pepperdine for allegedly harassing and discriminating against them in an effort to force Plaintiffs to quit the team because the team’s coach and others on the staff concluded they were lesbians and were dating. They brought a number of claims, including several for violation of Title IX.

Title IX prohibits, among other things, prohibits sex discrimination in federally funded education programs and activities receiving Federal funds. 20 U.S.C. § 1681(a). Title IX’s prohibition of discrimination “on the basis of sex” encompasses sex in the biological sense, gender, and gender stereotypes. (Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000); Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001).) Prior to the Court’s ruling in December, no Court in the Ninth Circuit had held that Title IX covers sexual orientation discrimination, however.

In ruling on Pepperdine’s motion to dismiss the Title IX claims, the Court observed that “that the distinction [between gender stereotyping and discrimination based on sexual orientation] is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination.” Consequently, the Court concluded that “claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”

In doing so, Pregerson acknowledged the EEOC’s July 2015 decision, Baldwin v. Foxx, in which the EEOC concluded that, under Title VII, “an employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.” Pregerson stated his ruling was “in line” with the EEOC’s decision.

Many states (22 at last count), including California, already prohibit discrimination based on sexual orientation. Pregerson laid out a compelling for protecting gay, lesbian, and bisexual people under existing federal law. While federal law and the federal courts may still be working thorough the issue, employers must be proactive in implementing and enforcing policies prohibiting workplace discrimination based on sexual orientation.

The case is Videckis v. Pepperdine University.

For more information contact:

Matthew C. Wallin
Gibbs Giden Locher Turner Senet & Wittbrodt LLP 
1880 Century Park East 12th Floor
Los Angeles, CA 90067
email: mwallin@gibbsgiden.com

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