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March 19, 2018 Practice Points

Circuits Split on Interpretations of Title VII and Sexual-Orientation-Based Claims

It seems likely that other appeals courts will be called to address this issue.

By J. Dalton Courson

In the last 15 months, the federal courts of appeals have split on whether an employee who alleges discrimination based on his or her sexual orientation has stated a claim under Title VII of the Civil Rights Act of 1964. Title VII expressly prohibits discrimination "because of . . . sex." The text of the statute does not expressly address discrimination on the basis of sexual orientation. The Eleventh Circuit held that sexual-orientation-based claims were not actionable. The Second Circuit, in Zarda v. Altitude Express, Inc., No. 15-3775, 2018 U.S. App. LEXIS 4608 (2d Cir. Feb. 26, 2018) (en banc) and the Seventh Circuit, in Hively reached the contrary conclusion.

In Evans v. Georgia Regional Hospital, 850 F.3d 1238 (2017), cert. denied, 138 S. Ct. 557 (2017), the plaintiff alleged employment discrimination because of her sexual orientation and gender nonconformity. The district court dismissed both claims. The appeals court reversed regarding the gender-conformity claim because under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), discrimination based on an employee's failure to conform to a gender stereotype is sex-based discrimination. With regard to the sexual-orientation-based claim, however, the appeals court affirmed dismissal. The Eleventh Circuit held that it was bound by precedent set forth in Blum v. Gulf Oil Corp., 587 F.2d 936 (5th Cir. 1979) ("Discharge for homosexuality is not prohibited by Title VII. . . .").

Shortly after Evans was decided, the en banc Seventh Circuit reached the contrary conclusion in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc). The Hively plaintiff alleged that she had been discriminated against because of her sexual orientation, and based on prior, controlling precedent, the trial court dismissed her claim and the original appellate panel affirmed. On en banc rehearing, the court reversed and overruled prior precedent. The majority opinion offered two rationales for why sexual-orientation discrimination is discrimination "because of . . . sex." First, under the "comparative method," the plaintiff's status as a lesbian represents the ultimate case of failure to conform to the female stereotype because she is attracted to other women, not men. Second, under the "associational theory," the court compared the facts to cases involving interracial couples, who are protected from race-based discrimination under Title VII. The court found that discrimination against gays and lesbians implicates sex in the same manner that discrimination against a member of an interracial couple implicates race. The court also noted that Title VII must be interpreted in light of the line of Supreme Court cases recognizing that certain kinds of discrimination on the basis of sexual orientation are unconstitutional, including Romer, Lawrence, Windsor, and Obergefell.

Most recently, the en banc Second Circuit issued Zarda v. Altitude Express, Inc., No. 15-3775, 2018 U.S. App. LEXIS 4608 (2d Cir. Feb. 26, 2018) (en banc). Zarda overruled contrary precedent and agreed with Hively. The court held that sexual-orientation discrimination is necessarily a form of sex discrimination because one cannot fully define a person’s sexual orientation without identifying his or her sex, thus sexual orientation is a function of sex. Indeed, the court found that sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. In addition, the Zarda court agreed with the "comparative" and "associational" rationales identified by the Hively majority.

It seems likely that other appeals courts will be called to address this issue, and eventually the Supreme Court may be asked to resolve the circuit split.

J. Dalton Courson is with Stone Pigman, New Orleans, Louisiana.

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