The Demise of “married Sunday, fired Monday”: Sexual Orientation Discrimination in Title VII

The Issue

In June 2015, the Supreme Court held in Obergefell v. Hodges that states must license and recognize same-sex marriages under the Due Process Clause of the Fourteenth Amendment.  While this historic decision opened the chapel doors for same-sex couples, the LGBT community still faces discrimination in other arenas, including employment. Does discrimination based on an employee’s sexual orientation fall under the prohibition of sex discrimination in Title VII of the 1964 Civil Rights Act? Overturning circuit precedent, the Seventh Circuit says yes. The Seventh Circuit is the first to rule in favor of expanding the meaning of discrimination on the basis of sex to include sexual orientation, and is therefore at odds with its sister circuits.

Title VII and Sex Discrimination Cases

Title VII of the Civil Rights Act of 1964 states that an employer subject to the Act cannot discriminate in hiring practices or against employees on the basis of “race, color, religion, sex, or national origin.”  While the Supreme Court has not directly weighed in on whether this statute bans discrimination based on sexual orientation, the Court has previously interpreted the meaning of sex for Title VII purposes. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that discrimination against an employee because he or she does not conform to gender stereotypes is prohibited. In Price Waterhouse, a female senior manager claimed her employer discriminated against her when the firm held her candidacy for a partnership position and failed to propose her for the position because she expressed more masculine attributes in her dress, hair, and personality. In Oncale v. Sundowner Offshore Servs. Inc. (1998), the Supreme Court again expanded sex discrimination under Title VII, holding that the sex of a harasser is immaterial to whether there was sex discrimination. Courts have used these cases to both support and undermine the inclusion of sexual orientation discrimination within Title VII.

The Split

The most recent circuit spilt on this issue is between the Seventh and Eleventh Circuit. In Hively v. Ivy Tech Cmty. College of Ind. (2017), a former part-time professor alleged discrimination under Title VII for her unsuccessful applications for a full-time position as well as the school’s failure to renew her part-time contract in 2014 because she is a lesbian. The Seventh Circuit, in an en banc decision, held that Hively’s claim fits within the interpretation of sex discrimination of Title VII because it is based on assumptions about the proper behavior for someone of a given sex.

The discriminatory behavior does not exist without taking the victim’s biological sex into account. Any discomfort, disapproval, or job decision based on the fact that the complainant- woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

The court made this determination by using a comparative method of analysis wherein it isolated the significance of the plaintiff’s sex in the employer’s decision and changed only that variable. Examining the situation if all the circumstances were the held the same, including the sex of her partner, and only Hively’s gender was changed, the court stated that “Hively represents the ultimate case of failure to conform to the female stereotype.” The Seventh Circuit also referred to the Supreme Court’s decision in Loving v. Virginia (1967) which held that discrimination because of the race with whom a person associates is a form of racial discrimination, to support its decision under an associational theory.

In Evans v. Ga. Reg’l Hosp. (2017), the Eleventh Circuit dismissed the plaintiff’s sexual orientation discrimination claim as such discrimination is not prohibited by Title VII. The court stated that it was required to follow its precedent in Blum v. Gulf Oil Corp. (1979) that “discharge for homosexuality is not prohibited by the Title VII”, unless the ruling is overruled either by the Supreme Court or the Eleventh Circuit sitting en banc. Rejecting the argument by the plaintiff that the Supreme Court decisions of Price Waterhouse (1989) and Oncale (1998) supported encompassing sexual orientation into sex discrimination, the court stated that these decisions were not clearly on point.

Looking Towards the Supreme Court

In September 2017, the Second Circuit sitting en banc heard oral arguments for Zarda v. Altitude Express, a case regarding this very question. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice both filed amicus briefs. In rare fashion, these two government agencies have opposite positions. In 2015, the EEOC announced that sex discrimination in Title VII includes discrimination based on sexual orientation. The Trump Administration and Department of Justice argue that because Title VII does not define the word sex, it must be taken in its common meaning to mean biologically male or female and, therefore, the law does not encompass discrimination based on sexual orientation. The brief further states that Congress has had ample time and opportunity to add sexual orientation discrimination into the legislation and has chosen not to. The split and opposing opinions present compelling reasons for the Supreme Court to take on the issue in the coming years. It may even be sooner rather than later, as LGBT advocacy group, Lambda Legal, has filed a petition for a writ of certiorari with the Supreme Court to appeal Evans.