Title VII and Sexual Orientation; To Be or Not to Be? That is Still the Question

Title VII and Sexual Orientation - To Be or Not to Be? That is Still the Question.

For most employers, whether or not sexual orientation is technically a “protected class” in the eyes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”) is irrelevant to their everyday practices in the workplace because it makes no difference. Employers are simply committed to the equal treatment of every employee, regardless of the group with which a particular employee identifies. They implement written policies memorializing this commitment. They instill workplace practices to put these words into action. And they train their employees to share in this commitment. These are all good practices! But do they further the purposes of federal anti-discrimination laws? When it comes to sexual orientation discrimination, the answer to that question is still up for debate. 

Title VII protects certain classes of employees and applicants, called “protected classes”, from discrimination and harassment based on their membership in such classes. One of these protected classes is “sex,” but the plain language of the statute neither expressly identifies “sexual orientation” as a protected class nor specifies whether “sexual orientation” falls within the meaning of the term “sex.” The ambiguity over whether sexual orientation is a protected class under Title VII has lingered for years because the final arbiter on issues of statutory construction, the United States Supreme Court, has yet to resolve this issue. Many courts have, of course, historically recognized that gender and/or sex-stereotyping based on an employee's “failure” to conform to gender norms violates Title VII, but the jury is still out on whether discrimination based on an individual’s sexual orientation alone violates Title VII.

For proponents of treating sexual orientation as a protected class under Title VII, the winds of change have started to blow. On April 4, 2017, the Seventh Circuit Court of Appeals issued a landmark decision extending the protections of Title VII to sexual orientation.[1] Writing for the majority, Chief Judge Diane Wood made clear the underlying rationale for placing sexual orientation on the same playing field as other protected classes:

[A] policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but 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 (either as observed at birth or as modified, in the case of transsexuals) 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. That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.[2]

While the Seventh Circuit is not the first court to hold that Title VII prohibits sexual orientation discrimination, its ruling is still significant because it is the highest one to reach this conclusion. Before the Seventh Circuit’s ruling in Hively, every appellate court facing this issue had ruled that sexual orientation was not a protected class under Title VII. Indeed, the appeal in Hively stemmed from a petition for rehearing en banc of an earlier opinion in the case issued by a three-judge panel, which had held that sexual orientation discrimination was not cognizable under Title VII.[3]

There is another reason why Hively is significant. It creates a split among the federal circuits over whether sexual orientation is a protected class under Title VII. Most recently, on March 10, 2017, the Eleventh Circuit, while acknowledging that discrimination based on gender stereotyping is prohibited by Title VII, held that Title VII’s protections do not extend to sexual orientation discrimination.[4] After the plaintiff in Evans moved for reconsideration en banc, the Eleventh Circuit issued a per curiam order on July 6, 2017, declining to reconsider its position on sexual orientation discrimination. The holding in Evans is consistent with those from courts in the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and D.C. Circuits, all of which have reached the same or similar conclusions as the Eleventh Circuit.[5]

Now that there is a clear split in authority between the federal appellate courts, the U.S. Supreme Court may have to resolve the issue once and for all. If it does, proponents of classifying sexual orientation as a protected class under Title VII may not have the support of the federal government behind them.  In April 2017, the Second Circuit reaffirmed its earlier position that Title VII’s protections did not encompass sexual orientation discrimination.[6] In May 2017, however, it agreed to rehear the appeal in Zarda en banc.[7] On June 23, 2017, the Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief in Zarda arguing that sexual orientation discrimination should be included as a protected class under Title VII.  But, on July 26, 2017, the Department of Justice (“DOJ”) muddied the waters by filing an amicus brief in in the same case arguing that Title VII’s prohibition against “sex” discrimination does not include sexual orientation. 

During oral arguments on September 26, 2017, the EEOC argued that Title VII’s reference to “sex” encompassed sexual orientation because “the two are one and the same."  By way of example, the EEOC argued that if a heterosexual female employee would not be fired for disclosing her sexual orientation, then a homosexual male employee who was fired for disclosing his sexual orientation would be the victim of sex discrimination.  The EEOC also argued that sexual orientation was protected by Title VII because same-sex attraction transgressed gender stereotypes. The DOJ, on the other hand, dismissed the notion that the term “sex” included sexual orientation. To make its point, it noted that someone would be called “racist” if they opposed interracial marriage. But, if they opposed same-sex marriage, they would not be called “sexist.” 

Notwithstanding the EEOC’s and DOJ’s opposing positions on sexual orientation discrimination before the Second Circuit, the DOJ is the agency responsible for representing the federal government before the U.S. Supreme Court. Therefore, unless the DOJ changes course and adopts the EEOC’s position, the federal government may oppose extending the protections of Title VII to sexual orientation. Time will tell.   

How the U.S. Supreme Court may rule on this issue also remains to be seen. In 2015, the Court ruled 5-4 that the Constitution’s Due Process and Equal Protection Clauses protected same-sex couples’ right to marry.[8] Justice Antonin Scalia has since passed away, but he was replaced on the bench by Justice Neil Gorsuch, who has a similar judicial philosophy to the late Justice. Thus, the ideological makeup of the Court remains largely unchanged since it issued its ruling in Obergefell. As in Obergefell, Justice Anthony Kennedy may prove to be the deciding vote. Until then, Congress is the only other institution endowed with the legal authority,  through legislative action, to answer the question, “Is sexual orientation discrimination illegal.” They appear to be in no rush to do so.      

Heath H. Edwards is an associate in the Labor & Employment Group at Waller Lansden Dortch & Davis, LLP. He is a 2009 graduate of University of Cincinnati College of Law. Heath may be contacted at 615-850-8729 or heath.edwards@wallerlaw.com

Brittany R. Stancombe is an associate in the Labor & Employment Group at Waller Lansden Dortch & Davis, LLP. She is a 2012 graduate of Samford University, Cumberland School of Law. Brittany may be contacted at 615-850-8730 or brittany.stancombe@wallerlaw.com


[1] See Hively v. Ivy Tech Comm. Coll., 853 F.3d 339 (7th Cir. 2017)

[2] Id. at 346-47. 

[3] Hively v. Ivy Tech Comm. Coll., 830 F.3d 698 (7th Cir. 2016)

[4] Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017)

[5] See, e.g., Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252 (1st Cir. 1999); Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017) (per curiam); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996); Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015); Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989); De Santis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979); Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005); Diaz v. Metro Are Transit Auth., 243 F. Supp. 3d 86 (D.D.C. 2017)

[6] Zarda, 855 F.3d 76

[7] Zarda v. Altitude Express, No. 15-3775, 2017 U.S. App. LEXIS 13127 (2d Cir. May 25, 2017)

[8] Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

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