Likewise, sexual orientation discrimination has only added to the confusion. While the stance of the Equal Employment Opportunity Commission is that sexual orientation is protected under Title VII, the Department of Justice recently filed an amicus brief with the Second Circuit arguing that Title VII does not protect discrimination based on sexual orientation. A major appellate issue in 2017 was whether Title VII encompasses sexual orientation discrimination. Because no uniform answer was provided politically, the hope was that the courts could offer some clarity.
The Trend Toward Protecting Sexual Orientation under Title VII
Until recently, the federal circuits uniformly held that Title VII does not include discrimination based on sexual orientation. Then the Seventh Circuit decided Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017). Hively was openly lesbian and she taught as an adjunct professor. She applied numerous times for a full-time faculty position but was repeatedly denied. Hively ultimately was fired and filed suit alleging sexual orientation discrimination under Title VII.
The case was appealed to an en banc panel of the Seventh Circuit. The court acknowledged that its sister circuits have held that sexual orientation is not protected, but the Supreme Court had yet to address the issue. When looking at the history of the Supreme Court’s interpretation of sex discrimination, it was evident that Title VII covered more than “a simple decision of an employer not to hire a woman for Job A, or a man for Job B.” Initially, the Supreme Court’s interpretation of sex discrimination focused solely on the biological differences between males and females. However, this interpretation started to change in the 1980s when the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and held that gender stereotyping falls under the umbrella of Title VII sex discrimination.
Next, the Supreme Court decided Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), and further expanded the interpretation of sex discrimination to include sexual harassment in the workplace and even same-sex sexual harassment. These interpretations certainly would have surprised the Congress that enacted Title VII in 1964, but experience with the law led the Supreme Court to recognize that each of these examples was a covered form of sex discrimination.
In addition, the Seventh Circuit pointed to Supreme Court jurisprudence in the area of broader discrimination on the basis of sexual orientation. Recent cases dealing with equal protection, such as Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), provided additional support for the Seventh Circuit’s decision. Based on all of these cases, the Seventh Circuit was persuaded that Title VII does protect against discrimination based on sexual orientation.
The Refusal of Other Circuits to Protect Sexual Orientation under Title VII
Shortly before the Hively opinion was issued, the Second Circuit decided its own Title VII sexual orientation case, Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017). Christiansen was an openly gay man and was targeted at work with a pattern of harassment based on his sexual orientation and effeminate qualities. Christiansen filed suit, and the case was appealed to the Second Circuit, which relied on precedent stating that Title VII does not encompass sexual orientation. In discussing the sexual orientation claim, the court held that it was “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.”
This is the same approach taken by other circuits. Each circuit has cases holding that sexual orientation is not protected by Title VII, and they are bound to follow them until the decisions are overruled. However, the Second Circuit ruled in favor of Christiansen under Title VII based on gender stereotyping. Christiansen’s supervisor described him as effeminate to others in the office, portrayed him in tights and a low-cut shirt “prancing around,” drew pictures of him as a bikini-clad female body lying on the ground, and called him a submissive sissy. The court held that even though Christiansen’s sexual orientation claim was not cognizable, he would still prevail because “stereotypically feminine gay men could pursue a gender-stereotyping claim under Title VII.”
At bottom, no one knows what sex discrimination actually means today. But the good news is that there is now a circuit split as to whether sexual orientation discrimination is protected under Title VII. It is only a matter of time before the Supreme Court grants certiorari and provides certainty on the issue. In the meantime, only the Seventh Circuit has held that sexual orientation is protected.
As seen in the Christiansen case, courts likely will uphold the circuit precedent that sexual orientation is not protected. However, these circuits may try to find some practical way for plaintiffs to prevail in order to overcome inherent inequities. Gender-stereotyping cases are alive and well in every circuit and allow plaintiffs to circumvent a sexual orientation discrimination claim. Stereotypically feminine gay men and stereotypically masculine lesbian women can follow the directives of Price Waterhouse and claim that they were discriminated against, not because of their sexual orientation, but because they failed to conform with gender stereotypes.