Sexual Orientation: Is It Protected By Title VII?

Submitted by: Labor and Employment PAC

By: Elizabeth Brannen Carter, Esq. and Jordan Jenkins, Esq. of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, Alabama

The Seventh Circuit gave the employment world on jolt when on April 4, 2017, it issued an opinion holding that discrimination based on sexual orientation is a violation of Title VII. See Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th 2017). The Seventh Circuit is the only appellate jurisdiction to find Title VII, which prohibits discrimination on the basis of a person’s race, color, religion, sex, or national origin, extends to sexual orientation.

In Hively, the Seventh Circuit considered whether sexual orientation discrimination is discrimination on the basis of sex for the purposes of Title VII. Id. at 344. The majority opinion, acknowledges Congress has never amended Title VII to include the terms “sexual orientation” in its list of prohibited characteristics. Id. at 344. However, the court did not allow that absence to block the conclusion that sexual orientation is a protected characteristic nonetheless. The court states the absence provides no assistance in determining whether sexual orientation discrimination is discrimination on the basis of sex. Id. at 344.

Predictably, the majority looks to the landmark case of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, (1998), to guide its statutory interpretation of Title VII. In Oncale, the Supreme Court held Title VII does not exclude a claim of same-sex harassment. Id. at 82. The Oncale Court noted that, although same-sex harassment was not the “principal evil” Congress was concerned with when it enacted Title VII, it was a “reasonably comparative evil.” Id. at 79. Mirroring the Court’s reasoning in Oncale, the Seventh Circuit claimed: “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” Id. 345.

The holding in Hively is also heavily influenced by the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, Hopkins claimed she was refused admission as partner in an accounting firm due to sex discrimination. Id. at 231-232. She was criticized by her employer for not conforming to female stereotypes—she was too masculine, tough-talking, and aggressive. Id. at 235. The Court posed the question whether gender was a factor in Price Waterhouse’s employment decision at the moment the decision was made. Id. at 241. Ultimately, the Court held “when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” Id. at 258.

In comparison to Price Waterhouse, in Hively, Ivy Tech allegedly discriminated against Hively because she fails to conform to the female stereotype—she is not heterosexual. The Seventh Circuit reasons the following:

“[A] policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex. The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account. 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, if it affects employment in one of the specified ways.”

853 F.3d at 346-347. Thus, the court concludes that sexual orientation discrimination is indistinguishable from sex discrimination.

Three Seventh Circuit judges disagreed. Judge Diane S. Sykes, author of the dissent, argues sexual orientation is neither a female nor a male stereotype. She explains that an employer who hires only heterosexual employees discriminates against individuals who do not match “the dominant sexual orientation regardless of their sex.” Id. at 370. Considering the same inquiry analyzed by the Price Waterhouse case, Judge Sykes posed the following for consideration: assuming Ivy Tech rejected Hively’s applications for promotions because of her sexual orientation, if Ivy Tech was asked what its reasons were for rejecting her applications, would it be reasonable to expect Ivy Tech to respond that it rejected her applications because she is a woman? Id. at 370. The dissent says no and argues Ivy Tech would respond that it rejected her applications because of her sexual orientation, not her sex. Id. at 370 In short, it appears Judge Sykes is divorced from any notion that sex orientation is associated with a person’s sex. Determining what will be the prevailing decision on this issue in other jurisdictions across the country is the hot button question.

A mere month prior to Hively, a three judge panel in the United States Court of Appeals for the 11th Circuit ruled there is no sexual orientation action under Title VII. In Evans v. Georgia Reg’l Hosp, Evans, a lesbian, argued the district court erred when it dismissed her claim asserting she was discriminated against because of her sexual orientation. 850 F.3d 1248, 1253 (11th Cir. 2017). She further argued Price Waterhouse and Oncale provide a claim for sexual orientation discrimination under Title VII. Id. at 1256. The Eleventh Circuit disagreed. In affirming the district court’s dismissal of Evans’ sexual orientation claim, the 11th Circuit stated that binding precedent forbids such an action under Title VII. Id. It further stated: “The fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit us to depart from [binding authority].” Id.

The Second Circuit recently reversed a district court’s ruling claiming there was no claim of action under Title VII for a homosexual male who claimed he was discriminated against because he was effeminate to others in the office. Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017). The Second Circuit held a cause of action exists under Price Waterhouse for an individual discriminated against for not conforming to gender stereotypes but nothing more, stating “the sexual orientation of the plaintiff in Price Waterhouse was of no consequence.” Id. at 200. The concurring opinion of Judge Robert A. Katzmann mirrors much of the same reasoning as Hively, anticipating “it would make sense for the Court to revisit” the issue when “the appropriate occasion presents itself.” Id. at 202.

Ivy Tech reportedly does not plan to appeal the Seventh Circuit’s decision. Hively now provides a claim for victims of sexual orientation discrimination in the Seventh Circuit. It also acts as persuasive authority for cases appealed to the Supreme Court from surrounding circuits. The issue of whether Title VII prohibits discrimination on the basis of sexual orientation may reach the Supreme Court sooner rather than later. The question is how much will the complexion of the court change before the issue reaches the high court and how will the new appointee(s) rule on such a critical issue.