Another Federal Appeals Court Finds Title VII Prohibits Sexual Orientation Discrimination

Following the Seventh Circuit’s landmark decision last April in Hively v. Ivy Tech Community College, the Second Circuit Court of Appeals has joined in finding that Title VII prohibits discrimination on the basis of sexual orientation. In Zarda v. Altitude Express, decided on February 26, 2018, the Second Circuit concluded that Title VII’s ban on sex discrimination “applies to any practice in which sex is a motivating factor.” Because sex is necessarily a factor in sexual orientation, discrimination based on sexual orientation amounts to banned sex discrimination, reasoned the Second Circuit.

The outcome in Zarda is significant because, unlike many state laws that explicitly prohibit sexual orientation discrimination, Title VII has long been interpreted by federal courts as not reaching such discrimination. The Second Circuit’s decision therefore signals a seismic shift in this long-standing consensus and will likely cause other circuits to reexamine their precedent in light of Title VII’s “evolving” legal framework. Although the Eleventh Circuit hewed close to its precedent in a decision issued shortly before Hively and declined to extend the reach of Title VII to sexual orientation discrimination, the Second Circuit’s decision suggests that the Equal Employment Opportunity Commission’s (EEOC) position on sexual orientation discrimination, which the agency has advanced for several years now, may be gathering steam. For example, in a recent decision from the First Circuit, Franchina v. City of Providence, the court noted that the continuing validity of its “nearly twenty-year-old” precedent on Title VII and sexual orientation discrimination was not at issue in the case, but it also observed (citing Hively) that “the tide may be turning when it comes to Title VII’s protections.” How high the tide goes, and whether it will reach the doors of the Supreme Court, remains to be seen.

Update on Title VII and Sexual Orientation Discrimination

Updating our previous post on this issue, the Eleventh Circuit Court of Appeals recently affirmed the dismissal of a complaint alleging sexual orientation discrimination under Title VII.   In its 2-1 decision in Evans v. Georgia Regional Hospital, the court explained that its prior precedent foreclosed the ability to bring a claim for sexual orientation discrimination under Title VII.   The court looked specifically to its decision from 1979 in Blum v. Gulf Oil Corp., where it held that Title VII did not prohibit the discharge of an employee based on his homosexuality.  Although the plaintiff in Evans argued that Blum was not binding, the court concluded otherwise and further noted that every other circuit that has addressed the issue so far has also found sexual orientation discrimination not actionable under Title VII (including the First Circuit in Higgins v. New Balance Athletic Shoe).

In affirming the dismissal, the court distinguished between sexual orientation discrimination and discrimination based on an individual’s failure to conform to a gender stereotype.  The court acknowledged that, in the latter case, discrimination based on gender non-conformity is sex-based discrimination.   This so-called sexual stereotype theory was first articulated by the Supreme Court in its 1989 decision in Price Waterhouse v. Hopkins.  However, the Eleventh Circuit found that while Price Waterhouse confirmed that gender non-conformity claims may be brought under Title VII, that decision did not squarely address whether Title VII prohibits sexual orientation discrimination.  As a result, the Eleventh Circuit found that Price Waterhouse did not justify departing from its prior precedent in Blum.

The majority opinion in Evans was accompanied by a strong dissent, which essentially argued that when an employee alleges discrimination because of sexual orientation, the employee necessarily alleges that he or she has been discriminated against for failing to conform to the employer’s image of what men or women should be, and that this is discrimination “because of sex.”

Given the split decision in the Evans case, there is a chance it may be reviewed by the entire panel of the Eleventh Circuit.  And, in light of recent developments in other circuits, it very well may be that the issue is headed for the Supreme Court.

Developments in Title VII and Sexual Orientation Discrimination

Many state anti-discrimination laws, such as those in Maine, Massachusetts and New Hampshire, specifically prohibit employers from discriminating against individuals on the basis of sexual orientation. To the surprise of many employers, this explicit prohibition is absent under federal law. However, recent activity in the federal courts may be changing that.

For a number of years now, the EEOC has taken the position that Title VII of the Civil Rights Act prohibits sexual orientation discrimination because it is discrimination based on “sex.” The EEOC even has a webpage summarizing the published decisions where it has taken this position in enforcement actions, including its decision in Baldwin v. Department of Transportation (July 15, 2015) where it concluded that an allegation of sexual orientation discrimination necessarily states a claim for discrimination on the basis of sex. The EEOC’s position has generally been at odds with decisions from federal courts, including the First Circuit Court of Appeals, which held in Higgins v. New Balance Athletic Shoe, Inc. (1st Cir. 1999) that sexual orientation is not a protected class under Title VII.

Now, it appears that the EEOC’s position may be gaining traction in the federal courts. For example, in October 2016, the Seventh Circuit Court of Appeals announced that its entire panel of judges would rehear arguments in a case decided earlier in the summer, in which a three-member panel held that sexual orientation was not a protected class under Title VII. Oral argument in that case, Hively v. Ivy Tech Community College, was held in November 2016. More recently, in January 2017, the Second Circuit Court of Appeals heard oral argument in Christiansen v. Omnicom Group, Inc., where questions from the Court suggested that it might be willing to reconsider whether Title VII’s prohibitions encompassed discrimination based on sexual orientation. These two appellate court developments followed activity at the district court level, where courts in Pennsylvania (EEOC v. Scott Medical Health Center, P.C. (November 2016)) and Nevada (Roberts v. Clark County School District (October 2016)) extended Title VII’s protection to discrimination based on sexual orientation and gender identity.

Obviously, the outcome of these cases remains to be seen, and it is unclear how the new Trump administration will affect the EEOC’s activities. Employers will therefore want to stay tuned in 2017 for new developments in this area of discrimination law.