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.

Federal Appeals Court Finds That Title VII Prohibits Sexual Orientation Discrimination

In a groundbreaking decision, the Seventh Circuit Court of Appeals ruled earlier this month that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation. The Seventh Circuit’s decision in Hively v. Ivy Tech Community College of Indiana is significant because it is the first decision by a federal appeals court to hold that sexual orientation discrimination is prohibited under Title VII.

Hively v. Ivy Tech Community College of Indiana

 

The fundamental question at issue in Hively was whether Title VII’s prohibition against discrimination “because of sex” encompasses discrimination on the basis of sexual orientation.  As noted in our previous posts on this topic (here and here), federal courts have historically answered “no” to that question and excluded sexual orientation discrimination from the protections of Title VII.   Indeed, last summer, a three-member panel of the Seventh Circuit concluded that its prior precedent precluded Hively’s claim for sexual orientation discrimination under Title VII and affirmed a lower court ruling dismissing her case.  In reaching that conclusion, however, the three-member panel questioned the continuing vitality of its previous decisions, particularly given the evolution of the law since Title VII was first passed in 1964, including the Supreme Court’s 2015 decision in Obergefell v. Hodges, which extended constitutional protections to the right of same-sex couples to marry.  As the three-member panel observed, its prior precedent created a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” 

Given this landscape, the full panel of the Seventh Circuit voted to rehear argument in Hively and, in its 8-3 decision this month, reversed its position.  The court gave two reasons for its decision.  First, applying a “comparative” method, the court explained that Hively’s primary allegation was that she would not have been terminated if, instead of being a woman, she were a man married to a woman,.  According to the court, this allegation described “paradigmatic sex discrimination” because it alleged differing treatment “because she is a woman.”  The court went on to explain that the line between gender stereotyping claims (which the Supreme Court recognized in Price Waterhouse v. Hopkins) and claims based on sexual orientation is not only “gossamer-thin,” it “does not exist at all.”  Second, the court explained that its decision was guided by a line of cases beginning with the Supreme Court’s 1967 decision in Loving v. Virginia, which prohibited discrimination against a person because of the protected characteristic of the one with whom he or she associates.  According to the Seventh Circuit, because a change in the sex of one partner would change the alleged outcome in this case, that change revealed that the alleged discrimination rested on impermissible “distinctions drawn according to sex.”

The Seventh Circuit’s decision provides new critical context for actions at the Eleventh and Second Circuits, both of which recently held that their prior decisions barred claims for sexual orientation discrimination under Title VII.  Should one or both of those circuits rehear argument and affirm their positions, it will create a circuit split that will certainly find its way to the Supreme Court.