Circuit Courts at Odds on Whether Title VII Covers Sexual Orientation Discrimination
A version of this article was originally published in the May 2017 issue of The HR Specialist. It is reprinted here with permission.
Title VII of the Civil Rights Act of 1964 makes it unlawful for covered employers to discriminate on the basis of a number of protected categories, including sex. 42 U.S.C. § 2000e-2(a). While sex has been a protected category since Title VII was enacted, the definition of discrimination based on sex has continually developed. For example, in 1989, the U.S. Supreme Court held that gender stereotyping is a form of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
On the issue of whether sexual orientation discrimination is a form of sex discrimination, federal district and circuit courts have held both ways, for a variety of different reasons. In 2015, the EEOC took the position that Title VII prohibits discrimination on the basis of sexual orientation. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015). The Second and Seventh Circuits have recently issued conflicting rulings on the issue, with the Second Circuit holding that sexual orientation discrimination is not sex discrimination within the meaning of Title VII, and the Seventh Circuit holding the opposite.
In Christiansen v. Omnicom Group, the plaintiff, an openly gay man, alleged that his supervisor harassed him on the basis of his sexual orientation. No. 16-748, 2017 U.S. App. LEXIS 5278 (2d Cir. March 27, 2017). The district court dismissed the claim, holding that, under Second Circuit law, sexual orientation discrimination is not covered by Title VII and the plaintiff did not have a plausible claim for discrimination on the basis of gender stereotyping. The Second Circuit upheld the district court’s holding that sexual orientation discrimination is not protected under Title VII.
However, the Second Circuit reversed the lower court’s holding regarding the gender stereotyping claim. The Second Circuit noted that the plaintiff’s complaint alleged multiple examples of gender stereotyping discrimination, including that his supervisor described him as “effeminate” to other people and drew the plaintiff depicted in tights and a low-cut shirt “prancing around.” The court held that the harassment was based on “stereotypically feminine” traits and constituted a valid claim of gender stereotyping discrimination. Thus, while the plaintiff was allowed to bring his harassment claims, it was on the basis of gender stereotyping, and not sexual orientation.
In Hively v. Ivy Tech Community College, the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination. No. 3:14-cv-1791, 2017 U.S. App. LEXIS 5839 (7th Cir. April 4, 2017). The plaintiff, an open lesbian, was a part-time professor at Ivy Tech Community College. From 2009 to 2014, she applied for at least six full-time positions and did not receive any of them. In July 2014, her part-time contract was not renewed. She brought suit, alleging that she was discriminated against because of her sexual orientation.
The district court dismissed the case, holding that sexual orientation is not a protected class under Title VII. On appeal, the Seventh Circuit initially upheld the district court’s ruling, but on an en banc review (in which the case was heard before all of the Seventh Circuit judges, instead of a panel), the Seventh Circuit reversed the district court’s decision. The court held there was no difference between a gender nonconformity claim and a claim based on sexual orientation and that “[a]ny discomfort, disapproval, or job decision based on the fact that . . . a woman or man dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
These decisions matter most for employers in states and localities that do not already have sexual orientation as a protected status as a matter of state or local law. Pennsylvania law does not explicitly protect against sexual orientation discrimination. However, 41 municipalities in Pennsylvania, including Philadelphia and Pittsburgh, prohibit discrimination on the basis of sexual orientation and/or gender identity.
New York law forbids discrimination based on sexual orientation, which is defined as actual or perceived heterosexuality, homosexuality, bisexuality and asexuality. New York also forbids discrimination based on gender identity and transgender status. Similarly, New Jersey law prohibits sexual orientation discrimination, which is defined as discrimination against employees or applicants who are perceived, presumed or identified as heterosexual, homosexual or bisexual by practice, identity or expression. New Jersey also prohibits discrimination based on gender identity or expression and requires employers to allow employees to dress in a matter consistent with their gender identity or expression.
Given the rapidly changing, often confusing legal landscape in this area, employers must be aware of what law is applicable to them and ensure company policies and practices are at least as generous as the applicable law. For companies with employees in multiple locations, the easiest practice (both from an administrative standpoint and from an employee morale standpoint) is often to make the most generous applicable law the companywide policy. Of course, employers also have the option to prohibit sexual orientation and/or gender identity discrimination as a company policy no matter the applicable law.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.