chevron-down Created with Sketch Beta.
February 22, 2017 Articles

“Sex” Discrimination under Title VII: An Ever-Changing World

By Sidney O. Minter

In the wake of Obergefell, we know that same sex marriage is legal across the nation. However, we still are not clear about whether a person's sexual orientation is protected under Title VII's "sex" provision.

What is considered sex discrimination under Title VII? That question has given rise to a number of claims and lawsuits across the country. Federal district courts have struggled with determining whether claims based on a person's sexual orientation are actionable as sex discrimination under Title VII. Currently, in both the Court of Appeals for the Seventh Circuit (hearing cases from Illinois, Indiana, and Wisconsin) and the Court of Appeals for the Eleventh Circuit (hearing cases from Alabama, Florida, and Georgia), these courts are considering the merits of two potential landmark cases. At the core, these courts are deciding whether to follow long-established precedent, which would preclude an employee's claim of discrimination based on sexual orientation—or, in the alternative, to move away from precedent, which would broaden the scope of Title VII's sex discrimination protection. Only time will tell what will happen.

Title VII and Its Protections
Title VII of the Civil Rights Act of 1964 was enacted primarily to protect minorities from discrimination in the workplace. Just before it was enacted, however, the U.S. Congress added a provision prohibiting discrimination based on "sex." From the beginning, our federal courts interpreted the "sex" provision narrowly. However, over the years, plaintiffs have pushed the courts for a much broader interpretation of the provision. Over the past few years—especially after the landmark decision in Obergefell—federal courts have grappled with determining which types of claims are actionable under the "sex" provision of Title VII. This has not proven to be a straightforward or uniform analysis across the nation.

Laying the Foundation: Important Sexual Orientation Decisions
Recently, there have been a number of cases addressing sexual orientation discrimination in an employment setting. In a July 2015 administrative decision, Baldwin v. Foxx, the Equal Employment Opportunity Commission held that "sexual orientation is inherently a 'sex-based consideration' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Although this case involved a federal employee and is only binding on federal employers, other federal courts have discussed it in dicta, which seems to suggest that other jurisdictions will be swayed by the decision. More recently, on November 4, 2016, the U.S. District Court for the Western District of Pennsylvania, in EEOC v. Scott Medical Center, held that sexual orientation falls within the protection of Title VII.

The Seventh Circuit (Initially) Says "No" to Claims Based on Sexual Orientation
In Hively v. Ivy Tech, Hively, an Indiana math instructor, alleged that she was denied a promotion and ultimately fired for being a lesbian. She filed a lawsuit in federal district court against Ivy Tech Community College, claiming the school was violating Title VII of the Civil Rights Act by discriminating against her because of her sexual orientation. This case tests whether sex discrimination protections afforded by Title VII of the Civil Rights Act of 1964 apply to discrimination based on sexual orientation claims. At the trial court level, Ivy Tech successfully moved the court to dismiss Hively's claim, arguing that Title VII does not protect employees from discrimination based on sexual orientation.

Not So Fast: What Does the Entire Court Think?
In July 2016, a three-person appellate panel of the Seventh Circuit upheld the trial court's decision. However, on October 11, 2016, the court set aside the previous ruling of the initial three-judge panel and agreed to rehear the case en banc(before all of the judges on the Seventh Circuit Court of Appeals). On November 30, 2016, the Seventh Circuit Court of Appeals reheard arguments in the case. (The arguments at the Seventh Circuit's hearing in Hively can be heard online).

The basic argument advanced by Hively's attorneys was that sex stereotyping based on sexual orientation is the same as garden-variety sex discrimination. During oral argument, one judge mentioned an earlier U.S. Supreme Court case, Loving v. Virginia, which overturned a Virginia state law banning interracial marriages. The judge compared interracial marriages with marriages between people of the same sex in a way that seemed favorable to Hively. During this argument, the court seemed to focus on Congress's action or inaction on clarifying rules relating to sexual orientation discrimination. Based on the legal positions advanced during oral argument, it would not be surprising if new case law comes out of the Seventh Circuit on this issue.

What Does the Eleventh Circuit Say?
In an unrelated but factually similar case, Jameka Evans filed a lawsuit in the U.S. District Court for the Southern District of Georgia against Georgia Regional Hospital—her former employer. In the lawsuit, she alleges that she worked for the hospital as a security officer and that she was discriminated against and ultimately terminated because of her sexual orientation. Just as in Hively, the trial court dismissed the lawsuit by holding that Evans's sexual orientation claim was not protected by Title VII. Following the trial court's decision, however, Evans appealed the decision to the Eleventh Circuit Court of Appeals.

On December 15, 2016, the Eleventh Circuit heard oral arguments from Evans's attorneys, as well as from counsel for Georgia Regional Hospital. Evans's attorneys argued that Title VII protects individuals from discrimination based on their sexual orientation. Georgia Regional, on the other hand, argued, among other things, that sexual orientation is not covered under Title VII's "sex" provision and that the court should follow long-established precedent holding same. Further, Georgia Regional argued that the court of appeals should affirm the trial court's decision dismissing Evans's lawsuit.

During the oral argument, at least one of the judges seemed to suggest that he would defer to precedent in which federal appeals courts concluded that "discharge for homosexuality is not prohibited" by antidiscrimination laws. This is but one judge's thought, but it is very interesting considering the Seventh Circuit has at least one judge who seems to be leaning in the opposite direction.

What Does the Future Hold for Employers?         
Whether Hively and Evans are decided in favor of employers or in favor of employees, both cases should serve as a warning to all employers that they could still face a claim of sexual orientation discrimination. There are two other avenues whereby employers could face liability for such claims. The first is through state law. Almost half of the states in the country have laws prohibiting sexual orientation discrimination in employment (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin), and some additional states protect state workers from such discrimination (Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Virginia).

Employers in these states should take proactive steps to ensure sexual orientation is treated the same as any other protected class—this includes reviewing written policies, handbooks, training sessions, workplace investigations, hiring methods, discipline and discharge procedures, and all other aspects of human resources activities.

Second, plaintiffs have successfully argued to various federal courts that Title VII sex discrimination covers claims of mistreatment based on gender nonconformity actions. This includes situations where employers are alleged to have discriminated against workers for failing to live up to stereotypical gender norms. Courts have noted that drawing a line that separates these "sex-stereotyping" claims from pure sexual orientation claims is "exceptionally difficult" because the distinction is often "elusive," meaning that employers anywhere could face a Title VII claim akin to a sexual orientation discrimination claim that would be accepted as valid by a federal court, no matter what the federal appeals courts say.

Finally, it is possible that the Supreme Court will step in in Hively or Evans should the courts decide that sexual orientation is not actionable as "sex" discrimination. As one court recently stated, "it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry." Regardless of the rulings in Hively and Evans, employers should take heed and prepare for what appears to be an inevitable extension of workplace protection rights for workers based on their sexual orientation.

Keywords: litigation, minorities, Title VII, sex discrimination, sexual orientation

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).