The Employer's Legal Resource: Is Discrimination Based on Sexual Orientation Prohibited Under Title VII? Several Appellate Courts Weigh In, But the Debate Continues
Three Circuit Courts of Appeals–the Second, Seventh, and Eleventh–have recently weighed in on whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964. Sexual orientation is not explicitly listed as a protected characteristic under the statute as it currently reads, but some argue–and several lower courts have ruled–that Title VII's prohibition on discrimination based on sex encompasses discrimination based on sexual orientation. The Tenth Circuit (in which Oklahoma lies) has not yet ruled on the issue.
Second Circuit: Title VII Does Not Prohibit Sexual Orientation Discrimination
In Christiansen v. Omnicom Group, Inc., the Second Circuit (comprised of a three-judge panel) refused to overturn existing legal precedent and ruled that Title VII does not prohibit discrimination based on sexual orientation.
Matthew Christiansen was the creative director for an advertising agency and an openly gay man. He claimed his supervisor engaged in a pattern of harassment targeting his effeminacy and sexual orientation and that he was discriminated against for his failure to conform to gender stereotypes. The trial court dismissed Christiansen's complaint because it viewed his allegations as raising a claim for sexual orientation discrimination rather than a gender stereotyping claim–which claim was barred in light of earlier case precedent excluding sexual orientation from Title VII's protections.
On appeal, Christiansen's attorneys argued that the Court should reconsider these prior decisions "in light of a changed legal landscape and hold that Title VII's prohibition of discrimination 'because of...sex' encompasses discrimination on the basis of sexual orientation." But the Court decided that existing precedent can only be overturned by the entire Second Circuit sitting en banc (meaning a ruling of all eleven active judges rather than a panel of only three) or by the Supreme Court. Christiansen's sexual orientation claims failed.
However, the Second Circuit did revive Christiansen's claim based on gender stereotyping. Title VII's prohibition against discrimination based on sex includes claims rooted in "sex stereotyping" or "gender stereotyping"–beliefs about appropriate behavior or appearances for men and women. Christiansen pointed to multiple instances of gender stereotyping: his supervisor described him as "effeminate"; drawings depicted him in tights and a low-cut shirt "prancing around"; a poster showed his head attached to a bikini-clad female body and portrayed him as a "submissive sissy".
The Court recognized that there is "some confusion" in the law about the relationship between gender stereotyping and sexual orientation discrimination claims. It explained that the gender stereotyping theory "would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine" but acknowledged that stereotypically feminine gay men (and stereotypically masculine lesbian women) could potentially pursue a gender stereotyping claim under Title VII in certain circumstances. In other words, any woman or man–regardless of their sexual orientation–may have a claim for sex discrimination based on gender stereotyping if they are perceived as not being traditionally feminine or masculine enough. But simply being gay or lesbian would not be enough to prove such a claim without other evidence of gender stereotyping.
Eleventh Circuit: Title VII Does Not Prohibit Sexual Orientation Discrimination
Jameka Evans worked at a Hospital as a security officer. She is gay, but did not broadcast her sexuality. Throughout her employment, she was discriminated against on the basis of her sex and targeted for failing to carry herself in a "traditional woman[ly] manner"–apparently, it was evident she identified with the male gender based on her uniform, haircut, and shoes. Evans claimed she was discriminated against because of her sexual orientation and because she failed to conform to gender stereotypes.
In Evans v. Georgia Regional Hospital, the Eleventh Circuit (in a three-judge panel) held that discrimination based on gender non-conformity is actionable under Title VII, but ruled that Title VII's protection against sex discrimination does not encompass sexual orientation. Like the Second Circuit in Christiansen, the Court was bound by prior precedent holding that "[d]ischarge for homosexuality is not prohibited by Title VII." Thus, Evans' claim she was discriminated against because of her sexual orientation could not succeed.
But Evans also alleged that she was discriminated against for failing to conform to gender stereotypes. The Eleventh Circuit agreed; under existing law, discrimination based on failure to conform to a gender stereotype is sex-based discrimination under Title VII. "All persons are protected from discrimination on the basis of gender stereotype" and, "because those protections apply to everyone," homosexual or transgender individuals cannot be excluded.
The Eleventh Circuit rejected the lower court's conclusion that Evans' gender stereotyping claim was just a repackaging of her sexual orientation claim and not a separate basis for sex-based discrimination. As the Court specifically noted, "a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation, but instead, constitutes a separate, distinct, avenue for relief under Title VII" and its protection against discrimination based on sex. Thus, her gender stereotyping claim could survive even though her sexual orientation claim did not.
Seventh Circuit: Title VII Does Prohibit Sexual Orientation Discrimination
Unlike the Second and Eleventh Circuits, the Seventh Circuit (sitting en banc) ruled in Hively v. Ivy Tech Community College of Indiana that discrimination based on sexual orientation is a form of sex discrimination under Title VII.
Kimberly Hively was an openly gay adjunct professor. Over the course of five years, she applied and was rejected for several full-time professor positions before her contract ultimately was not renewed by the college. Hively alleges that the College refused to promote her and eventually fired her based on her sexual orientation.
In a divided–and highly analytical–decision, the Seventh Circuit considered "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." It found 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" persuaded the Court that "the time had come to overrule [its] previous cases." In so doing, the Seventh Circuit acknowledged it did not have the power to add a new protected category to Title VII's existing list; instead, it was interpreting "what it means to discriminate on the basis of sex" and deciding "whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex."
The Court recognized that "Congress had nothing more than the traditional notion of 'sex' in mind when it voted to outlaw sex discrimination" in 1964–for example, male-on-male sexual harassment "was assuredly not the principal evil Congress was concerned with when it enacted Title VII." But "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils....[T]he fact that the enacting Congress may not have anticipated a particular application of the law" and "may not have realized or understood the full scope of the words it chose" when including sex as a prohibited basis for employment discrimination "cannot stand in the way of the provisions of the law that are on the books." Undeniably, Title VII has been understood to cover far more than an employer's simple decision not to hire a woman in the years since it was first enacted.
Hively alleged that if she had been a man married to (or dating or living with) a woman, the College would not have refused to promote her and would not have fired her. The Court agreed, noting that what Hively described is "paradigmatic sex discrimination"–she was disadvantaged because she was a woman. Further, the Court explained:
Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not a heterosexual.
Any discomfort, disapproval, or job decision based on the fact that the complainant–woman or man–dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means it falls within Title VII's prohibition against sex discrimination.
The Seventh Circuit advised that its decision in Hively must be understood against the backdrop of Supreme Court precedent not only in the employment context, but also in the broader realm of discrimination on the basis of sexual orientation generally–including Obergefell v. Hodges (which legalized same-sex marriage nationwide nearly two years ago). The Court went on to explain that "it would require considerable calisthenics to remove the 'sex' from 'sexual orientation' [and] the effort to do so has led to confusing and contradictory results" and affirmatively concluded that "a person who alleges she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes."
What Does This Mean?
It is clear that gender stereotyping–regardless of sexual orientation–is protected under Title VII's prohibition against discrimination based on sex. However, courts are more reluctant to extend Title VII's protection to include discrimination based solely on sexual orientation and are bound by case precedent ruling against doing so. This is surely a hot-button issue, and one still very much in dispute. Be aware that some states already protect against sexual orientation discrimination under their state equivalents of Title VII (Oklahoma is not one of them). Non-binding EEOC guidance has adopted a similar contention. But unless Congress passes legislation amending Title VII to explicitly include sexual orientation under its umbrella of protection, it is unlikely that courts will reach a consensus on this issue any time soon. However, many courts have this topic on their radar and seem to be looking for a case that gives them good reason to revisit prior holdings. We will keep you posted on further developments if and when they come.
By Rebecca D. Bullard, RBullard@dsda.com