The Judiciary continues to act where Congress will not

All employment attorneys—and most employers—know that Title VII bars discrimination based on certain enumerated personal characteristics: race, color, religion, sex, and national origin. It has long been the case that “sex” meant biological sex only, i.e., discriminating against a woman because she is a woman, or against a man because he is a man, is plainly illegal under Title VII.

By contrast, unlike some equivalent state laws, it has long been clear that Title VII does not guard against discrimination based on sexual orientation.  Indeed, Congress has on a number of occasions rejected amendments or new laws that would have added sexual orientation to the list of characteristics protected by federal law.

Three recent landmark federal appellate court decisions have paved the way to a much broader protection of workers against “sex discrimination” based solely on sexual orientation.

The Eleventh Circuit again holds that sexual orientation is not covered by Title VII

Illustrating the power of precedent, just last month a panel of the Eleventh Circuit  reaffirmed, in Evans v. Georgia Regional Hospital,  that “‘Discharge for homosexuality is not prohibited by Title VII….’”  The court therefore found the plaintiff, a lesbian woman with a masculine gender identity and appearance, could not state a claim for sexual-orientation discrimination.

Highlighting the rather incongruous state of Title VII case law, the Evans court then reiterated that discrimination based on gender-nonconformity is actionable sex-discrimination, under Price Waterhouse v. Hopkins.   Accordingly, the court remanded the case to allow the plaintiff to replead a discrimination claim based on gender non-conformity.

The Second Circuit broadens the scope of gender-stereotyping discrimination to protect LGBT employees

In a similar decision, also just last month, the U.S. Court of Appeals for the Second Circuit likewise reaffirmed in Anonymous v. Omnicom Group, Inc. its own longstanding precedent that sexual-orientation discrimination is not barred by Title VII.

And like the Eleventh Circuit did in the Evans case, the Omnicom court affirmed that gender stereotyping is actionable as sex discrimination. However, Omnicom also overruled some prior district court decisions that held it was more difficult for LGBT employees to pursue gender-stereotyping claims, because of the difficulty in separating the two concepts: “In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.”

The Seventh Circuit’s landmark ruling: discrimination based on sexual orientation is sex discrimination

Evans and Omnicom illustrate the rather confusing legal landscape employers must navigate when it comes to sexual orientation and gender identity.  Last year, a Seventh Circuit panel reviewed Hively v. Ivy Tech Community College, a case in which an openly lesbian professor alleged discrimination based on her sexual orientation alone.

The Hively court, much like the its Evans and Omnicom sisters described above, was bound by its precedent and concluded that “Title VII provides no protection from nor redress for discrimination on the basis of sexual orientation.”

Fast forward to this month, and in a remarkable change of course, the entire Seventh Circuit, sitting en banc, has revisited the original Hively opinion and has concluded that “sex” under Title VII does include sexual orientation. In doing so, the Seventh Circuit overturned its own well-established line of cases, such as Hammer v. St. Vincent Hosp. & Health Care Center, Inc., which had repeatedly held that “sex” did not encompass “sexual orientation.”

Some commentators have suggested that the Hively majority was influenced by the Omnicron holding, but that implication misunderstands both cases. Omnicron only reiterated that discrimination based on non-conformity to a gender stereotype is actionable, and then pointed out that this protection extends to LGBT individuals too, something that had only been obscured in some district court cases.

Instead, the Hively majority, in stark contrast to all prior decisions from any federal court of appeals, squarely held that sexual orientation discrimination, standing alone, quite simply is sex discrimination.  The opinion advanced two somewhat complicated reasons for this holding.  First, the majority imported the comparator approach, which is normally applied during summary judgment as a test for causation.  The court concluded that, had Hively been a man, she would not have been discriminated against for having a sexual orientation towards women.

Second, the majority relied on the U.S. Supreme Court’s 1967 opinion in Loving v. Virginia, which held that state laws banning interracial marriages are unconstitutional.  In Loving, The  Court found that bans on interracial marriages was impermissibly based on race, rejecting the state’s argument that the ban penalized white and non-white persons equally. The Hively majority found that understanding directly applicable to the matter of sexual orientation and that discrimination based on sexual orientation is discrimination based on sex, even if in theory the employer might be equally discriminatory against both male and female employees with an LGB orientation.

Three judges dissented, arguing that Congress did not intend in 1964 for Title VII to cover sexual orientation, and that the majority was impermissibly rewriting the statute.

Two interesting concurrences in Hively are worth noting.  Rejecting the dissent’s originalism arguments, Judge Posner threw down the gauntlet, explicitly arguing that the court can and should judicially “update” Title VII based on the experiences of intervening years and society’s changing understanding of “sex.”  “[T]oday we are rewriting Title VII.”

The second concurrence is far less radical (and potentially more influential). In a short, understated opinion, Judge Flaum reasoned that sexual orientation discrimination has two components: “discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex.”  Flaum went on to say “This raises the question: Does Title VII’s text require a plaintiff to show that an employer discriminated against them solely ‘because of” an enumerated trait?’”  The answer to that question is simple, and found within Title VII itself:  “‘Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.’”

This is a reason that is grounded in the language of the statute, and that can draw on existing case law for deciding when unlawful discrimination is a motivating factor. As such, it is one that other circuits can perhaps more readily follow, without having to proclaim they are updating Title VII, or following the rather novel reasons stated by the Hively majority.

Employment law takeaways—coming soon to a court near you?

The employer in Hively now faces the difficult choice between proceeding again in the trial court, or petitioning the U.S. Supreme Court for review, which could invite significant negative publicity.  Most employers do not want to be in that position.

The prudent course is to maintain and enforce workplace policies preventing discrimination against LGBT employees (which may be required anyway under many state laws). Although at this point it is still the law in most circuits that discrimination based on sexual orientation is not actionable under Title VII, Hively shows that could change at any time.  And plaintiffs’ lawyers who previously turned away sexual-orientation based cases may be emboldened to start taking them.


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