Analyzing the “Sex” in Sexual Orientation Discrimination

Maria Castro, Associate Member, University of Cincinnati Law Review

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against their employees on the basis of race, color, religion, sex, or national origin.[1] Circuit courts are split over whether discrimination on the basis of sexual orientation is included under Title VII’s prohibition against sex discrimination.[2] Historically, courts did not recognize sexual orientation discrimination as a cognizable action under Title VII.[3] However, in 1989, the Supreme Court in Price Waterhouse held gender-stereotyping claims were a form of sex discrimination.[4] Some federal courts have allowed LGBT individuals to bring sex discrimination claims based on prohibited gender stereotyping.[5] In March 2017, the Eleventh Circuit reaffirmed its precedent that sexual orientation is not a cognizable action on its own.[6] However, in April 2017, the Seventh Circuit became the first circuit to hold sexual orientation discrimination was prohibited sex discrimination under Title VII.[7]

In Zarda v. Altitude Express, the Second Circuit upheld precedent stating that sexual orientation discrimination was not protected, but reheard the case en banc to consider overturning its precedent.[8] During the en banc hearing, the EEOC and the DOJ filed opposing amicus briefs. The EEOC argued sexual orientation is a prohibited form of sex discrimination, whereas the DOJ argued that it is not. Given the circuit split and the differing federal agency opinions on the same issue, it is possible the Supreme Court will grant certiorari to hear this issue in Evans. The Second Circuit should find sexual orientation, on its own, is not a protected class under Title VII because it is not listed in the statute, it was not intended to be included in the statute, and it is ultimately the legislature’s role to amend the statute to include sexual orientation as a protected class.

The Eleventh Circuit: Title VII Does Not Prohibit Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, the Eleventh Circuit held sexual orientation discrimination is not a cognizable claim under Title VII.[9] The employee in Evans argued that the Supreme Court supported a cause of action for sexual orientation discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228.[10] In support of her gender-nonconformity claim, the employee argued sexual orientation is a gender non-conformity issue because “discrimination based on gender stereotypes is a broad claim that encompasses more than just her appearance, but also provides for suits based on other stereotypes, such as family structure.”[11] However, the Eleventh Circuit disagreed, recognizing that Price Waterhouse supported a cause of action for gender non-conformity, but that a gender non-conformity claim was not the same as a sexual orientation claim.[12]

All persons, whether LGBT or not, are protected from discrimination based on gender stereotype.[13] Price Waterhouse specifically allowed for gender-nonconformity claims to be brought under sex discrimination claims; however, it did not address sexual orientation claims.[14] An LGBT individual might also deviate from gender stereotypes, but not necessarily.[15] A lesbian woman, just like a straight woman, may bring a gender-nonconformity claim if it is found she was fired for wearing a “male haircut,” and therefore not conforming to her employer’s gender expectations of what a woman should look like.[16] However, just as a straight woman cannot recover under Title VII if she is fired for being heterosexual, a lesbian woman cannot recover under Title VII if she is fired for being a lesbian.[17] Therefore, gender non-conformity and sexual orientation are two legally distinct concepts.[18] As a result, Price Waterhouse does not support a cause of action for sexual orientation claims simply because it supports a cause of action for gender-nonconformity claims.

The Seventh Circuit: Title VII Prohibits Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held discrimination on the basis of sexual orientation is a form of sex discrimination.[19] In making this determination, the Seventh Circuit analyzed Price Waterhouse and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75.[20] The employee in Hively offered two approaches to support her claim that sex discrimination includes sexual orientation discrimination.[21]

Under the comparative theory method, the court examined whether the outcome for the employee would have differed if the employee’s sex changed.[22] The employee was a woman married to a woman, so the court looked at whether the outcome would have differed if she had been a man married to a woman. The court found under this approach, the employer disadvantaged her “because she is a woman.”[23] Furthermore, the court found the line between a gender nonconformity claim and a sexual orientation claim does not exist.[24] As a woman, the employer expected the employee to be married to a man, not to another woman. According to the Seventh Circuit, sexual orientation discrimination is a form of gender nonconformity discrimination because “it is based on assumptions about the proper behavior for someone of a given sex.”[25] It is impossible to discriminate against a person based on their sexual orientation without taking into account their sex.[26]

Under the association approach, the Seventh Circuit relied on Loving v. Virginia[27] to find that employees have a right to associate intimately with a person of the same sex.[28] The court found that “it is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”[29] For example, the Second Circuit found an employer discriminated on the basis of race when it fired a white employee because he was married to a black woman.[30] The court found that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Therefore, the court in Hively found that when an employer fires an employee for her association with another woman, the employee suffers discrimination because of the employee’s own sex.[31]

The Second Circuit Should Follow Precedent

Congress did not include sexual orientation discrimination as a protected class within Title VII. The text of Title VII specifies that an employer cannot discriminate based on “race, color, religion, sex, or national origin.” Sexual orientation and sex are not one in the same. Sex refers to one’s biological status and is typically categorized as male, female, or intersex.[32] Sexual orientation refers to the sex of those whom one is sexually and romantically attracted.[33] Congress has introduced and failed to pass many bills that would have included sexual orientation discrimination as a protected class.[34] There are a variety of reasons to explain why Congress did not pass any of these bills. It could possibly be indicative of Congressional intent to exclude sexual orientation as a protected class, or it could be indicative of Congressional belief that sexual orientation discrimination is already included under sex discrimination. It could also be due to disagreement about the terminology among members of Congress.

Regardless of the reason that Congress has not yet adopted a bill amending Title VII to include sexual orientation discrimination as a protected class, the main point is that Congress is the appropriate branch to determine this issue. Congress is the branch that created Title VII, and the only branch that can amend it. It cannot be argued that in 1964, Congress intended to include sexual orientation discrimination within Title VII protections. When Congress included “sex” discrimination as a protected class, it intended to prohibit employers from discriminating against employee’s based on their sex, not based on their sexual orientation. Sex and sexual orientation are two separate concepts.

There are many sound policy arguments to support including sexual orientation as a protected class under Title VII. LGBT individuals are treated as second-class citizens when employers can fire them simply for being LGBT. In addition, it is a bizarre notion that an employee may legally get married on a Saturday, and then also legally be fired for it on a Monday.[35] However, when the Supreme Court recognized same-sex marriage in Obergefell, it dealt with state action, not private action.[36] State action is subject to constitutional limits; private action is regulated by statute.[37] Title VII is that statute at issue here, not the Due Process Clause or the Equal Protection Clause. Title VII does not include sexual orientation as a protected class. Therefore, the policy arguments that support protecting LGBT individuals from employment discrimination should be directed towards Congress, not the courts.

Conclusion

The Second Circuit should uphold precedent and find sexual orientation discrimination is not a cognizable action under Title VII and the Supreme Court should rule accordingly if it hears this issue. In order to make sexual orientation a protected class under Title VII, Congress should amend Title VII. Congress is the appropriate branch to make this change in the law. However, attorneys should continue to keep in mind that LGBT clients might be able to make valid gender-nonconformity claims, under the appropriate set of facts.

[1] 42 U.S.C. § 2000e-2.

[2] Hively v. Ivy Tech Cmty. Coll. Of Ind., 853 F.3d 339 (7th Cir. 2017); Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017); Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).

[3] Hively, 853 F.3d at 340.

[4] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[5] Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017).

[6] Evans, 850 F.3d at 1255.

[7] Hively, 853 F.3d at 340.

[8] Sexual Orientation and Gender Identity Discrimination Under Title VII, Practical Law Practice Note w-007-8106

[9] 850 F.3d at 1255.

[10] Id. at 1256.

[11] Id. at 1254.

[12] Id.

[13] Id.

[14] Id. at 1256.

[15] Id. at 1258 (Judge William Pryor, concurring).

[16] Id.

[17] Id.

[18] Id.

[19] 853 F.3d at 341

[20] Id. at 342.

[21] Id. at 345.

[22] Id.

[23] Id.

[24] Id. at 346.

[25] Id.

[26] Id.

[27] 388 U.S. 1.

[28] Hively, 853 F.3d at 345.

[29] Id.

[30] Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008).

[31] Hively, 853 F.3d at 349.

[32] Resolution on gender and sexual orientation diversity in children and adolescents in schools. (2015). American Psychological Association & National Association of School Psychologists. Retrieved from http://www.apa.org/about/policy/orie ntation-diversity.aspx

[33] Id.

[34] Evans, 850 F.3d at 1261 (Judge William Pryor, concurring).

[35] Hively, 853 F.3d at 342.

[36] Id. at 372 (Judge Sykes, dissenting).

[37] Id.

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