For decades, courts across the country have grappled with the question of whether and how to address federal claims by lesbian, gay, and bisexual (LGB) plaintiffs alleging employment discrimination related to their sexual orientation. On its face, Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sex, but does not explicitly address sexual orientation. Despite the seeming overlap between these two categories, the purported distinction between them under this law has led to confusion in the court system and inconsistent remedies for litigants.
However, a growing body of authority has begun to question the notion that sexual orientation is necessarily excluded from the statute’s protections, possibly signaling an impending sea change in Title VII jurisprudence. Perhaps most significantly, in 2015 the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing Title VII, ruled that for federal employees, alleging discrimination based on sexual orientation necessarily states a claim for sex discrimination. Though the agency’s decision is only persuasive authority for federal courts, many have given it considerable weight. In light of this and other changes, such as the 2015 legalization of same-sex marriage across the nation, courts have increasingly been highlighting the intrinsic inconsistencies of trying to differentiate sexual orientation from sex discrimination claims, and as previously discussed by another columnist on this blog, have in some cases outright rejected this approach.
A Conflicted Approach: Hively v. Ivy Tech Community College
A recent and notable example of this rejection is the Seventh Circuit Court of Appeals’ July 2016 opinion in Hively v. Ivy Tech Community College, decided by a three-judge panel. Kimberly Hively was a part-time adjunct professor at the defendant college for over a decade. During that time she applied for but was denied six full-time teaching positions for which she alleges she was qualified. The college refused to interview her, and ultimately declined to renew her part-time teaching contract. Hively filed a complaint with the EEOC, and later filed suit in federal district court alleging that she was not hired or promoted because of her sexual orientation, in violation of Title VII. The district court granted the college’s motion to dismiss on the grounds that Title VII’s non-discrimination protections do not include sexual orientation.
The Seventh Circuit is the first federal appellate court to have considered a Title VII sexual orientation discrimination claim since the 2015 EEOC decision. The Hively court began its discussion by stating that it could have limited its ruling to a few sentences, affirming the district court and finding that the plaintiff had failed to state a claim under Title VII by citing its own prior holdings that this provision does not cover sexual orientation discrimination. Instead it dedicated over 40 pages to it opinion, illustrating the problems inherent in attempting to separate sex discrimination from sexual orientation discrimination claims. However, it ultimately, and somewhat confusingly, affirmed the lower court’s ruling that Title VII did not protect the plaintiff in this case.
In explaining its position, the court acknowledged the EEOC’s finding that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The court also conceded that many district courts seem to find the EEOC’s reasoning compelling, despite the fact that the commission’s ruling is not binding upon them. Nonetheless, the court maintained that its prior case law would not allow it to recognize the plaintiff’s sexual orientation discrimination claim as actionable under Title VII in the absence of either a legislative change or new authority from the Supreme Court.
In its opinion, the court noted that the EEOC decision had specifically criticized the Seventh Circuit for its relatively cursory treatment of this issue in recent years. In response, the Hively court conducted a rather extensive survey of Title VII sex discrimination cases related to sexual orientation discrimination. It started with the seminal 1989 Price Waterhouse v. Hopkins ruling, in which the Supreme Court established that adverse employment decisions based on a plaintiff’s perceived nonconformity with sex stereotypes or gender-based social norms are actionable as sex discrimination under Title VII. In the context of LGBT rights, Price Waterhouse paved the way for plaintiffs to seek relief under Title VII for employment discrimination arising out of any alleged failure to meet stereotypes of what men and women “should” do. However, because the availability of a sex discrimination claim here depends on characteristics or behavior that not all LGB people exhibit, in the absence of a specific statutory allowance for sexual orientation discrimination, many employees are left without any recourse at the federal level if they experience discrimination based on their sexual orientation.
Thus, in the wake of the Price Waterhouse ruling and in light of Title VII’s facial exclusion of sexual orientation as a protected characteristic, courts have been struggling to figure out where and how to draw the line between sex discrimination claims that are based on sex stereotypes and those that are based on a plaintiff’s sexual orientation. The Hively court provided an overview of those cases, focusing on two groups: 1) those in which courts refuse to entertain any sex discrimination claim that suggests sexual orientation discrimination may have been a factor, and 2) opinions characterized by a court’s attempts to separate sex stereotyping from sexual orientation discrimination.
Not surprisingly, these approaches have resulted in an odd patchwork of case law. Under the first approach, sex stereotyping claims by LGB plaintiffs can be thrown out entirely for even hinting at sexual orientation discrimination, while heterosexual plaintiffs making identical claims related to sex stereotyping can still pursue remedies under Title VII. In the second group of cases, courts are overly focused on behaviors or mannerisms believed to be stereotypically “gay” or “straight.” The cases in this group can end favorably for some LGB plaintiffs, but as the court acknowledged, “it is not at all clear that [a] court [can] successfully segregate characteristics based on sexual orientation from those based on gender, or if such a task is even possible.”
Indeed, the court explained that these attempts to tease out sex stereotyping claims while avoiding the plaintiff’s sexual orientation are problematic because they generally overlook what some would consider to be most fundamental gender nonconforming act of LGB people, which is to be romantically interested in or involved with a person of the same sex. If an employer subjects an LGB employee to discrimination because of a belief that a man should not date another man, or that a woman should not marry another woman, this conduct is not only rooted in beliefs related to sex stereotypes, but is also inextricably linked to the employee’s sexual orientation. As such, the court explained that “almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender nonconformity.”
Finally, the court noted that Title VII precedent related to associational discrimination, or adverse action against an employee for having a relationship (romantic, social, familial, or otherwise) with someone who is part of a protected class provided further support for the inclusion of sexual orientation protections. The court pointed out that the same logic prohibiting an employer from discriminating against an employee for being in an interracial marriage should outlaw discrimination against someone for being in a same-sex relationship. In other words, in both examples, the employee is experiencing discrimination that would not occur but for her race or sex, and should theoretically be protected by Title VII. Courts consistently agree with this logic as to race, but oddly have not extended it to include sex.
In the end, the Seventh Circuit concluded that none of this reasoning was sufficient to override the barriers of either legislative inaction or the Supreme Court’s silence on this issue. Indeed, while conceding the likelihood that most instances of discrimination based on sexual orientation result from employers’ or co-workers’ disapproval of an LGB employee’s gender nonconformity, the court stated its belief that this is not necessarily true in all cases, meaning that it must “continue to extricate the gender nonconformity claims from the sexual orientation claims.” The court also stated that recent changes in the broader legal landscape related to LGBT rights, such as the legalization of same-sex marriage, could not tip the scales in this instance. Acknowledging that although under existing law an employee can marry a same-sex partner on a Saturday and in many states be fired for doing so the following Monday, the court determined that this “paradox [was] not [its] concern” in the sense that it was only tasked here with interpreting Title VII’s sex discrimination provision. Noting that all other federal circuit courts that have addressed the question of whether sexual orientation is covered by the statute have reached the same conclusion, the Hively court suggested that it may be time for the Supreme Court to correct the appellate courts if they all have it wrong.
Notably, the Hively court discussed the EEOC’s reliance on the Supreme Court’s language in Oncale v. Sundowner Offshore Services, Inc., a case in which the high court applied Title VII’s sex discrimination protections to protect the plaintiff from same-sex sexual harassment, that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Taken together with the state of the law described above, this rejection of the notion of legislative inaction or intent as a barrier in this context helped to provide the basis for the EEOC’s determination that Title VII’s protections should unquestionably include sexual orientation. Yet despite the Seventh Circuit’s apparent agreement with the EEOC on many aspects of this issue, the Hively court concluded that it could not rule the same way, notwithstanding its acknowledgement that under existing authority “[w]e are left with a body of law that values the wearing of pants and earrings over marriage.”
This was a disappointing result for LGBT rights advocates, and has left some observers wondering why the court declined to rule in favor of expanding Title VII’s coverage after seemingly laying much of the groundwork for doing so in its lengthy opinion. The court’s analysis (which interestingly was not published until 10 months after oral argument, and which was not joined by one of the three judges on the panel except as to the court’s ruling and reliance on its prior holdings, perhaps signaling some sort of internal debate within the court) may provide a basis for expanding federal non-discrimination protections to include sexual orientation in the future, possibly by the Seventh Circuit en banc or by the Supreme Court on appeal. Indeed, as the opinion stated, “[p]erhaps the writing is on the wall” that the time for such an expansion has arrived. But, the court made it clear that barring any new developments from the legislature or the highest court, it would refrain from instituting any such change for the time being.
Going forward, plaintiffs with access to state or local remedies for discrimination based on sexual orientation may continue to pursue them, and as described above, it is possible for an employer to be found liable on federal claims related to sexual orientation in some cases. However, the outcomes in those cases will continue to be inconsistent and uncertain among the lower courts pending decisive action by Congress or the Supreme Court.