The Lawletter Vol 42 No 6
In interpreting the coverage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, appellate courts have held that the prohibition against discrimination based on sex does not encompass discrimination based on sexual orientation. E.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). In December 2012, however, the Equal Employment Opportunity Commission ("EEOC") took the opposite position in a Strategic Enforcement Plan that prioritized enforcement of discrimination against lesbian, gay, bisexual, and transgender employees under the sex discrimination provisions of Title VII. Since that time, the EEOC has filed a number of lawsuits alleging discrimination against gay and lesbian employees and has consistently maintained that Title VII's prohibition of discrimination based on sex protects employees against discrimination based on sexual orientation. See, e.g., Complainant v. Anthony Foxx, Secretary, Dep’t of Transp. (Fed. Aviation Admin.), Agency, EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2016).
In April 2017, the Second Circuit, relying on Simonton, held that Title VII does not prohibit discrimination based on sexual orientation. Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017). The court also noted that a separate panel had held that Simonton could only be overturned by a Second Circuit en banc decision.
Similarly, the Eleventh Circuit held in March 2017 that a lesbian employee was not protected under Title VII against discrimination based on her sexual orientation. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017). In the Evans decision, the court cited a 1979 case that held that discharge for homosexuality is not protected by Title VII, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (adopted as binding precedent for the Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), and found that it was bound to follow the ruling in Blum unless that decision is overruled by an en banc holding of the Eleventh Circuit.
In Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc), however, the Seventh Circuit Court of Appeals held that an employee alleging that she was discriminated against because of her sexual orientation stated a claim under Title VII. Hively was an en banc decision, overturning the previous decision by a panel of the circuit holding that the employee had not stated a claim under Title VII.
The court addressed two arguments. First, the comparative method in which the court asks whether the plaintiff has described a situation in which, holding all other variables constant and changing only her sex, would she have been treated differently? In other words, if Hively had been a man married to (or living with a woman), would the employer have refused to promote her? The answer to that question was "yes," the court held. Hively also argued that discrimination based on sexual orientation is discrimination under the associational theory. The court agreed with her argument, citing the 1967 Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967), to explain her right to associate intimately with a person of the same sex:
In the context of interracial relationships, we could just as easily hold constant a variable such as "sexual or romantic attraction to persons of a different race" and ask whether an employer treated persons of different races who shared that propensity the same. That is precisely the rule that Loving rejected, and so too must we, in the context of sexual associations.
Hively, 853 F.3d at 349. Following the Hively holding, the Second Circuit agreed to rehear Zarda en banc. The Evans plaintiff has also requested an en banc rehearing by the Eleventh Circuit. Whether the question is eventually decided by the Supreme Court will likely depend on whether (or how long) a circuit split on the issue exists.
It should be noted that 20 states plus the District of Columbia prohibit discrimination based on sexual orientation, not only in hiring and firing but also in fringe benefits, leave policies, retaliation, and other terms and conditions of employment. For example, in May 2017, a federal judge approved a $7.5 million settlement in a class action against Wal-Mart, compensating employees who were refused benefits for their same-sex partners.
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