Sexual orientation discrimination may be headed to U.S. Supreme Court

Odd, bizarre, contradictory, based on gossamer-thin distinctions—all these words have been used to describe the state of the law about employment discrimination based on sexual orientation.

Indeed, the U.S. Eleventh Circuit Court of Appeals has recently ruled that Title VII of the Civil Rights Act does not protect workers against discrimination based on sexual orientation. (Alabama is in the Eleventh Circuit.)

But about a month after the Eleventh Circuit decision, the U.S. Seventh Circuit Court of Appeals ruled that Title VII does protect workers against discrimination based on sexual orientation.

While these two circuit courts were considering the issue, the U.S. Second Circuit Court of Appeals ruled twice that Title VII does not protect workers against discrimination based on sexual orientation.

This circuit split—as we lawyers like to call it—is likely to motivate the U.S. Supreme Court to hear an appeal about the issue soon.

Furthermore, the Equal Employment Opportunity Commission (EEOC), the primary federal agency for enforcing the Civil Rights Act, has determined that sexual-orientation discrimination is a form of sex discrimination. See these previous posts:

• EEOC brings sexual orientation claims under umbrella of Title VII
• Historic settlement of sexual-orientation discrimination law

Let’s first look at the Seventh Circuit decision.

Background about the Hively decision

Hively v. Ivy Tech Community College: In this case, the plaintiff sued a community college alleging that she was denied full-time employment and promotion because of her sexual orientation. The U.S. District Court for the Northern District of Indiana granted the college’s motion to dismiss. The plaintiff then appealed to the Seventh Circuit. In its initial decision, a three-judge panel of the Seventh Circuit affirmed circuit precedent that Title VII did not protect workers against sexual-orientation discrimination. However, even though the court affirmed precedent, the court pointed out an apparent inconsistency in current Title VII precedent:

As things stand now, however, our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who acts and appears straight. This type of gerrymandering to exclude some forms of gender-norm discrimination but not others leads to unsatisfying results.

At this point, the plaintiff had two choices: (1) appeal to the U.S. Supreme Court or (2) file an en banc appeal (in which all the judges of the Seventh Circuit would hear the case). Let’s pause for a moment to explain some legal “inside baseball.” A federal circuit court may have many judges. Right now, for example, the Seventh Circuit has 12 judges. But all 12 don’t hear every case. Instead, three-judge panels hear each case. Once a precedent is set by one of these three-judge panels, another panel of three judges from that same circuit can’t change that precedent, but a panel of all the judges (called en banc ) can make a change.

So when Hively came to bat again, the en banc panel of the Seventh Circuit reversed the decision of three-judge panel and found that sexual-orientation discrimination was a form of sex discrimination. See Hively v. Ivy Tech Community College, 830 F.3d 698 (7th Cir. 2016) and 853 F.3d 339 (7th Cir. 2017).

Summary of the other cases

Christiansen v. Omnicom Group, Inc.: In this case, the plaintiff alleged the employer, his supervisor, and others had discriminated against him because he was HIV positive and didn’t conform to gender stereotypes. The U.S. District Court for the Southern District of New York dismissed the plaintiff’s case because circuit precedent said that Title VII does not protect workers from discrimination based on sexual orientation. The plaintiff then appealed to the Second Circuit. The Second Circuit reversed the district court on the issue of discrimination, making a distinction between sexual-orientation discrimination and sexual-stereotyping discrimination. The circuit court even noted that the district court acknowledged that it had difficulty in distinguishing sexual-orientation discrimination and sexual-stereotyping discrimination. After pointing out that the record contained plenty of evidence for sexual-stereotyping discrimination and that the district court’s decision should therefore be reversed, the circuit court affirmed circuit precedent that Title VII did not protect against sexual-orientation discrimination:

[Other Second Circuit cases] merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.

See Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017).

Zarda v. Altitude Express: Less than a month later, the Second Circuit again affirmed those precedents in a case in which the plaintiff had asserted he was fired because of his sexual orientation. In this case, the plaintiff-skydiver sued for sexual-orientation discrimination under New York law and sex discrimination under Title VII. The U.S. District Court for the Eastern District of New York followed Second Circuit precedent by ruling that sexual-orientation discrimination was not sex discrimination under Title VII. The sexual-orientation discrimination claim under New York went to trial, and the jury found for the defendants (that is, the jury found the plaintiff had not been discriminated against on the basis of his sexual orientation). The circuit court found that the district court was correct in ruling that Title VII does not outlaw sexual-orientation discrimination, and did not overturn the jury’s verdict in favor of the defendants and against the plaintiff. See Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).

But now (as of May 9, 2017), the plaintiff in the Omnicom case has filed a request for the Second Circuit to hear his case en banc. Likewise, the plaintiff in the Zarda case has also filed a request for an en banc hearing. So this issue is headed down the same path as the Hively case, but in a different circuit.

Evans v. Georgia Regional Hospital: The plaintiff sued her employer for discrimination based on her sexual orientation, sexual stereotyping discrimination (called gender non-conformity in the court’s decision), and retaliation. The plaintiff brought suit without having an attorney represent her (called proceeding pro se, which is a Latin term meaning “for oneself”). Without waiting for a motion from the defendant, the U.S. District Court for the Southern District of Georgia dismissed the case. On appeal, the Eleventh Circuit noted that the pro se plaintiff had not properly pleaded sexual-stereotyping discrimination and remanded the case to the district court so that she could amend her complaint. So for that claim, her case continues. But the circuit court also affirmed circuit precedent by ruling that Title VII does not protect workers against sexual-orientation discrimination. See Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017).

The state of the law is confusing

There is no doubt that the law on this point is confusing. And it’s probably confusing because the courts have been hesitant to make far-reaching, clear-cut decisions—instead “chipping away” at sexual-orientation discrimination, in its various form, a bit at a time. Below is a brief history of Title VII, and the way it has evolved over the last 50 years.

In 1964, Congress passed Title VII, which says:

It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s  . . . sex[.]

In 1989, the U.S. Supreme Court declared that Title VII protects employees from failing to comply with typical gender stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

In 1996, the Supreme Court ruled that Colorado could not prohibit local governments from taking steps to protect homosexuals, lesbians, or bisexuals. In this case, several local governmental bodies in Colorado had provided protection against discrimination in housing, employment, education, public accommodations, health and welfare services, and other activities. The state legislature then sought to override the local government protections by passing a constitutional amendment to outlaw the actions taken by the local governments. Romer. v. Evans, 517 U.S. 620 (1996).

In 1998, the Supreme Court expanded Title VII to prohibit same-sex sexual harassment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Before this decision, the lower federal courts were likewise split, some recognizing same-sex sexual harassment and others indicating that Title VII did not prohibit it.

In 2003, the Supreme Court ruled that homosexual activities between two consenting adults could not be a crime. Lawrence v. Texas, 539 U.S. 558 (2003).

Finally, in 2015, the Supreme Court declared same-sex marriage legal. Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

Perhaps this explains why the Seventh Circuit said the following in its ruling:

[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago. The 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 . . . . 

What is clear under the current state of the law?

1. Every circuit has ruled that Title VII prohibits discrimination and harassment based on sexual stereotyping.
2. Title VII prohibits harassment of others because of their sexual orientation.
3. The issue of sexual-orientation discrimination is probably on a fast track to the U.S. Supreme Court. It will be up to our nation’s highest court to conclusively decide this issue.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2017