Sexual Orientation and Gender Nonconformity: What Is “Actionable” under Title VII?

After the landmark case of Obergefell v. Hodges, in which same-sex marriage was legalized in all states, the interpretation of "sex" has been analyzed even further—often leading to confusion among litigants and federal courts. To muddy the waters further, about one month later, the Equal Employment Opportunity Commission (EEOC), in Baldwin v. Department. of Transportation, issued an opinion providing that federal employees can bring actionable discrimination claims based solely on sexual orientation. This decision, at least for federal employers, expanded the litigant pool. Following this decision, other federal courts have discussed Baldwin in dicta,but we still do not have a definitive answer for this question: whether a litigant has standing to bring a claim based solely on sexual orientation.

This article provides (1) a brief history of Title VII sex discrimination litigation, (2) a brief discussion of Hively, (3) potential solutions to the issue, and (4) advice for employers in complying with Title VII.

Outside the narrow holding in Baldwin, federal claims based solely on sexual orientation have not been actionable. However, some federal circuits have allowed claims based on allegations of sexual orientation and gender nonconformity. In these cases, courts have generally teased apart the two claims and focused only on gender stereotype allegations. In doing so, courts have still struggled with trying to decide how every sexual orientation claim is not inherently a gender nonconformity claim. The argument is that discrimination against gay, lesbian, and bisexual employees arises because their behavior is seen as falling short of gender stereotypes, such as men should dress like "men" or men should only marry women.

Courts have reasoned that, in maintaining the narrow interpretation of "sex," a person's sexual orientation was not related to his or her biological sex. Therefore, that type of specific claim was not actionable. In 1989, in PriceWaterHouseCoopers v. Hopkins, the Supreme Court of the United States held—for the first time—that gender nonconformity discrimination was actionable as "sex" discrimination under Title VII. This case marked a great victory for the lesbian, gay, bisexual, and transgender (LGBT) community. A few years later, in Oncale v. Offshore Oil Services, the Court broadened "sex" litigation to include claims based on same-sex harassment. This again was a win for the LGBT community. Although the Court expanded the scope of the term "sex," it did not discuss whether a claim based solely on a person's sexual orientation could be actionable under Title VII. During the next quarter century, our federal district and appellate courts struggled with delineating between sexual orientation claims, which are not actionable, and gender nonconformity claims, which are actionable. As one court put it, a person can legally be married on a Friday but lose his job on a Monday because of his sexual orientation. Most recently, in August 2016, the Seventh Circuit Court of Appeals, in Hively v. Ivy Tech Community College, issued an opinion shedding some light on the many different sides of this issue.

In Hively, the plaintiff was employed as a part-time adjunct professor at Ivy Tech Community College. She worked for Ivy Tech for 14 years until Ivy Tech did not renew her part-time employment contract. During her career, she applied for six full-time positions with Ivy Tech but was never offered an interview—despite having the necessary qualifications and no negative evaluations in her file. The plaintiff filed a claim alleging discrimination based on her sexual orientation. It failed because claims based solely on sexual orientation are not actionable in the Seventh Circuit. The Hively court, instead of stopping at that conclusion, went to great lengths to provide a historical context of sexual orientation and gender nonconformity Title VII litigation. The court cited many cases from nearly every federal circuit—noting that claims based solely on allegations of sexual orientation were not allowed. It also shed some light on how certain federal circuits disallow claims to which sexual orientation and gender nonconformity claims are "bootstrapped." Ultimately, the lack of consistency on this issue in our federal courts has created a perplexing problem with no immediate solution.

The Hively court mentioned two potential solutions. First, the U.S. Congress could introduce legislation to amend Title VII. In doing so, it could either (1) extend Title VII to cover sexual orientation claims for all employers or (2) explicitly exclude sexual orientation claims for all employers. This does not appear to be a likely result, however, considering that Congress has repeatedly rejected legislation that would provide clarity on this point. Second, the U.S. Supreme Court could chime in on this issue as well. With the sheer number of Title VII "sex" cases, the Court has been afforded opportunities to provide a definitive answer but has chosen instead to "punt" on this issue. At some point, the right case, with the right set of facts, will likely force the Court to chime in on this issue once and for all. The Baldwin case, which applies to federal employees only, has been cited often as of late. Yet, unless the sexual orientation claim is raised by a federal employee, it is still not actionable in any federal court. Because we do not have a clear answer, employers and employees have been affected. Even more, the federal courts are coming up short on rational answers to this confounding problem.

Moving forward, we know that discrimination claims based solely on sexual orientation are not actionable, though it appears the tide is turning such that these claims may soon be actionable. Whether this result will be achieved by some act of the U.S. Congress, or by a Supreme Court opinion, we do not know.

Recommendations for Employers

1. Assume that sexual orientation and gender nonconformity claims are actionable.

2. Include training regarding sexual orientation and gender nonconformity in discrimination training.

3. Add "sexual orientation" and "gender nonconformity" to the list of protected classes in employee handbooks.

Keywords: litigation, minorities, discrimination, sexual orientation, gender nonconformity

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