at p. 11. In support of its Motion to Dismiss, defendant Scott Medical Health Center relied on Bibby v. Philadelphia Coca-Cola Bottling, Co., 260 F.3d 257 (3d Cir. 2001). In Bibby, the Third Circuit Court of Appeals held that “Title VII does not prohibit discrimination on the basis of sexual orientation.”
Employers in the Second Circuit (Connecticut, New York and Vermont) may see an upswing in sexual orientation claims brought under Title VII rather than or in addition to state law. Employers outside of these states should remember that the EEOC continues to take the view that Title VII prohibits discrimination based on sexual orientation and should anticipate that the EEOC and/or private litigants are likely to continue to pursue these claims even in jurisdictions where the courts have rejected these claims.Footnotes1SeeKevin Kraham and Emily Haigh,Seventh Circuit Holds Title VII Protections Extend to Sexual Orientation Discrimination, Littler ASAP (Apr. 6, 2017).2See, e.g. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999);Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001);Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996);Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979);Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012);Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989);DeSantis v. Pacific Telephone & Telegraph Co.,608 F.2d 327, 329 (9th Cir. 1979), abrogated by Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001);DeSantis, 608 F.2d at 329–30;Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005);Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017),cert.
The District Court for the Eastern District arrived at a different conclusion, ruling that sexual orientation discrimination was not actionable under Title VII. In coming to its decision, the District Court for the Eastern District relied on the Third Circuit’s decision in Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). There, the Third Circuit found that sexual orientation discrimination is lawful under Title VII.
Relying on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1998), the Court stated, “[T]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality . . . [and the Court found that] discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.” The Court rejected the argument that the U.S. Court of Appeals for the Third Circuit (which has jurisdiction over Pennsylvania) had ruled on the issues in Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009). The Court noted the Third Circuit’s decisions were not dispositive — both because they were decided on different arguments and analytical frameworks, and because much of the case law precedent relied on in those cases either predated Price Waterhouse or merely accepted as a given that Title VII did not cover sexual orientation discrimination.
Similarly, an Oregon district court reasoned that one way to analyze a Title VII claim “is to inquire whether the harasser would have acted the same if the gender of the victim had been different” (Heller v.Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 [D. Or. 2002]; denying defendant’s motion for summary judgment). Other courts, however, have expressly declined to recognize sexual orientation-based adverse employment actions as a potential form of sex discrimination (see Dawson v. Bumble & Bumble, 398 F.3d 211, 217 [2d Cir. 2005]; affirming district court’s summary judgment in favor of defendant; Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 264 [3d Cir. 2001]; affirming summary judgment in favor of defendant). The Equal Employment Opportunity Commission (EEOC) recently held that sexual orientation discrimination falls under sex-based discrimination ( Complainant v. Anthony Foxx, Secretary, Dept. of Transportation [Federal Aviation Administration] Agency, Appeal No. 0120133080, Agency No. 2012-24738-FAA-03).