Potential circuit split highlights question over Title VII and sexual orientation discrimination

The 11th Circuit Court of Appeals created a likely split in federal courts of appeals this week when it upheld a district court’s dismissal of a complaint alleging harassment on the basis of sexual orientation.

The 11th Circuit’s decision in Jameka Evans v. Georgia Regional Hospital rested on the ground that discrimination on the basis of an employee’s sexual orientation is not prohibited under Title VII of the Civil Rights Act (Case No. 15-15234). The plaintiff in this case, a former hospital security guard, alleged that she was harassed because she is a lesbian and because she did not conform to gender norms. As precedent for its decision, the 11th Circuit cited to a 1979 case out of the 5th Circuit (Blum v. Gulf Oil Corp., 597 F.2d 926).

With other U.S. Circuit Courts of Appeals considering — and in the case of the 7th Circuit, reconsidering — similar cases, the 11th Circuit’s decision in Evans has primed the legal landscape for a possible circuit split on whether Title VII protects homosexuality. Thus, this issue may soon be ripe for clarification by Congress or the Supreme Court, and we expect it will be addressed in some form in the not-so-distant future.

Where the issue stands now

The current legal landscape on the issue of discrimination based on sexual orientation merits a brief summary:

  • The U.S. Supreme Court has approached this issue on two occasions, while not directly deciding whether sexual orientation is within the scope of Title VII. The Supreme Court recognized in Price Waterhouse v. Hopkins, 490 U.S. 228 (1998), that employment discrimination on the basis of sex stereotypes (i.e. perceptions or expectations regarding how an individual should behave or dress in accordance with sex) qualifies as sex discrimination. In Oncale v. Sundowner Offshore Services,523 U.S. 75 (1998), the Supreme Court held that same-sex harassment is sex discrimination and therefore prohibited by Title VII.
  • The Equal Employment Opportunity Commission (EEOC) has repeatedly demonstrated its support for extending the scope of Title VII to protect individuals from discrimination on the basis of sexual orientation. For example, in a 2015 decision letter for a case called Ballwin v. Foxx (EEOC Doc No. 0120133080), the EEOC took the position that discrimination on the basis of sexual orientation qualifies as sex discrimination because sexual orientation is inextricably linked to sex. Additionally, in March 2016 the EEOC filed two lawsuits alleging that employees were subject to hostile work environments based on sex when they were harassed because of their sexual orientation. The EEOC’s general counsel stated that, in filing these suits, “EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.” Under the Trump presidency, the EEOC has affirmed its commitment to its most recent strategic enforcement plan, which includes prioritizing the emerging issues of LGBT protections. Commissioner Chai Feldblum opined that we “might see some modifications in terms of focus, but these priorities are the same.” With over 5,000 charges filed over the past four years pertaining to LGBT discrimination issues, it is not surprising that the EEOC has focused on this area of law.
  • The U.S. Circuit Courts of Appeals have begun to dig into whether Title VII prohibits discrimination on the basis of sexual orientation and, in doing so, have created room for a circuit split. The 2nd Circuit held arguments in early January 2017 on an appeal for dismissal of a claim alleging discrimination based on sexual orientation, and it should render its decision soon. See Christiansen v. Omnicom, 167 F.Supp.3d 598 (S.D.N.Y. 2016). The 7th Circuit recently held in Hively v. Ivy Tech Community College, 830 F.3d 698 (7th 2016), albeit reluctantly, that Title VII does not protect employees from discrimination on the basis of sexual orientation. The 7th Circuit then granted a petition for a rehearing, and in doing so vacated its prior judgment. Oral arguments took place in late November, and commentators believe it is likely that the 7th Circuit will hold that sexual orientation discrimination is prohibited under Title VII. It is also worth noting that multiple federal district courts have read Title VII’s prohibition on sex discrimination to include claims of sexual orientation discrimination.
  • At the state level, employers should note that the Illinois Human Rights Act expressly prohibits discrimination on the basis of sexual orientation. Further, sexual orientation is defined to include gender identity. The Missouri Human Rights Act, on the other hand, has not been extended to cover sexual orientation or gender identity. Additionally, on March 1, 2017, the Missouri Senate voted down a bill that would have prohibited discrimination on the basis of sexual identity and orientation in the areas of employment, housing and discrimination. Several Missouri municipalities, including St. Louis city, prohibit discrimination on the basis of sexual orientation.

What’s next?

What can we expect in terms of a clarification on the issue of Title VII’s prohibition against discrimination on the basis of sexual orientation? It is possible that the Supreme Court could grant certiorari to decide a case involving a Title VII sexual orientation claim, as it has historically resolved circuit splits in this manner.

Alternatively, Congress might take legislative action to amend Title VII. Multiple bills have been proposed over the past few decades that would extend Title VII’s coverage to LGBT individuals, but legislative efforts have stopped short of becoming law. Perhaps if a circuit split does result, lawmakers will be motivated to expand Title VII’s coverage. Amending Title VII to include this additional protection would put federal law on par with many state and local laws and clear up the ongoing debate about what “sex” means under Title VII. Notably, 7th Circuit Judge Richard Posner rhetorically asked during oral arguments in the Hively case, “Who’s going to be hurt by giving lesbians and homosexuals a little more job protection?”

We are closely monitoring legal updates pertaining to workplace discrimination and will keep readers up to date on developments. In the meantime, if you have questions regarding the anti-discrimination laws in your state or any other employment-related matters, please contact any of the attorneys in our Employment & Labor group.