May 10, 2016

Federal Appeals Court May Soon Decide Whether Title VII Ban on Sex Discrimination Applies to Sexual Orientation

Two pending cases may provide the first rulings from federal appeals courts that Title VII prohibits discrimination on the basis of sexual orientation.

Last September, the Seventh Circuit heard arguments in Hively v. Ivy Tech Community College, in which a former adjunct professor alleged her contract was not renewed after her superiors learned she is gay. In Evans v. Georgia Regional Hospital, currently pending before the Eleventh Circuit, the plaintiff alleges she was harassed and forced to quit her position as a security guard because of her sexual orientation.

In both cases, the plaintiffs argue that Title VII’s prohibition on gender discrimination extends to discrimination on the basis of sexual orientation. Under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, Title VII prohibits discrimination based on gender stereotypes. The plaintiffs in Hively and Evans argue that discrimination based on sexual orientation is discrimination based on failure to conform to a gender-based stereotype: the stereotype of opposite-sex attraction. Neither the Supreme Court nor any federal circuit court has ruled that Title VII applies to sexual orientation discrimination.

But the Equal Employment Opportunity Commission (EEOC) has not been waiting for such a ruling. Since 2015, it has been actively advancing a position that Title VII prohibits sexual orientation discrimination under the umbrella of prohibited gender discrimination. Since then, the number of EEOC charges alleging sex discrimination based on LGBT status has increased 28 percent year-over-year. And in March 2016, the EEOC issued a press release announcing that it had filed its first two sexual orientation lawsuits alleging violations of Title VII.

One or more federal appeals courts may soon follow. At oral argument in the Hively case, Seventh Circuit Judge Ilana Rovner, a George H.W. Bush appointee, remarked on the status of the plaintiff’s argument in light of the Supreme Court’s decision last term, in Obergefell v. Hodges, to legalize gay marriage: “It just seems incongruous to imagine a country where federal law requires states to permit gay marriage but will not protect these same people from being fired for being gay.” Whether Hively or Evans will be the first case to interpret Title VII as providing those protections remains to be seen.

Although federal law may soon prohibit discrimination on the basis of sexual orientation, many states already do so. So long as no actual conflict exists between federal and state laws, employers are bound by state laws that provide greater protection for employees than comparable federal laws. For example, California’s Fair Employment and Housing Act and the Minnesota Human Rights Act prohibit discrimination and harassment on the basis of sexual orientation as well as other gender-related protections. Moreover, avoidance of litigation is only one of the sound business reasons for employers to take proactive efforts to provide a workplace free of discrimination and harassment.

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