United States: The Evolving Definition Of Sex(ual Orientation) Under Title VII

Last Updated: June 7 2017
Article by Nonnie L. Shivers

On April 4, 2017, the Seventh Circuit Court of Appeals issued its highly anticipated decision in Hively v. Ivy Tech Community College of Indiana, making the Seventh Circuit the first federal appellate court to find that sexual orientation is encompassed in Title VII of the Civil Right Act of 1964's definition of "sex." Hively affects the lay of the land for future sexual orientation cases, and likely sets the stage for a resolution of the question plaguing courts and agencies (as well as employers): does Title VII's prohibition on discrimination because of sex prohibit sexual orientation discrimination?

Title VII's Protections

Title VII establishes that "it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." Discrimination because of an individual's sex encompasses biological sex. Nothing in Title VII's legislative history indicates that Title VII's drafters or implementers envisioned including sexuality, gender identity, and gender expression in the definition of sex. However, Title VII has long been interpreted to encompass things other than simply biological sex, including gender stereotyping and same-sex harassment. With the U.S. Supreme Court's decisions in U.S. v. Windsor in 2013 (finding the Defense of Marriage Act unconstitutional) and Obergefell v. Hodges in 2015 (finding a fundamental right to marry for same-sex couples), the question of whether Title VII protects sexual orientation is being asked by agencies and courts more and more often.

Protections Pre-Hively

Since 2013, the U.S. Equal Employment Opportunity Commission (EEOC) has included eradicating discrimination against lesbian, gay, bisexual, and transgender (LGBT) employees as part of its articulated strategic enforcement priorities. The EEOC's FY 2013-2016 and its new FY 2017-2021 Strategic Enforcement Plans both identify the emerging and developing issue of "protecting lesbians, gays, bisexuals and transgender (LGBT) people from discrimination based on sex" as part of its priorities. Like the EEOC, a small, but growing number of district courts have also taken issue with the logic of concluding that sexual orientation discrimination is not sex discrimination under Title VII. As just one example, the U.S. District Court for the District of Connecticut recently found that "straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex; the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation within the penumbra of sex discrimination."

Hively Breaks New Ground

The facts underlying the Hively decision are straightforward. Hively, an out lesbian, taught as an adjunct professor at Ivy Tech Community College. After nine years on the job, she applied for six full-time positions over the following five years but did not receive any of the positions she sought. Hively attributed Ivy Tech's failure to hire her for those positions to her sexual orientation and sued Ivy Tech for sexual orientation discrimination under Title VII. Notably, she did not allege that she had been subjected to gender stereotyping. Ivy Tech moved to dismiss Hively's complaint for failure to state a claim, arguing that sexual orientation is not a protected class under Title VII. The district court granted Ivy Tech's motion to dismiss.

A three-judge panel of the Seventh Circuit initially affirmed dismissal of Hively's claim. The Seventh Circuit then granted a rare en banc (full court) hearing of the matter and subsequently reversed the district court's decision dismissing Hively's suit. The Seventh Circuit's holding is very simple: sexual orientation discrimination is discrimination on the basis of sex under Title VII. Based on Hively's allegation that she did not obtain the positions she sought due to her sexual orientation, Ivy Tech "is disadvantaging her because she is a woman." The Seventh Circuit reached this decision based on three cases (and their progeny) decided by the Supreme Court of the United States: Oncale (same-sex harassment), Loving (associational discrimination), and Obergefell (fundamental right to marry).

First, the Seventh Circuit looked to Oncale, in which the Supreme Court addressed the issue of whether Title VII covers same-sex sexual harassment (e.g., male-on-male harassment). The Supreme Court in Oncale recognized that male-on-male sexual harassment was not the principal evil with which Congress was concerned when it enacted Title VII. The Supreme Court held, however, that it was a reasonably comparable evil that Title VII clearly prohibited. The Seventh Circuit deployed this reasoning to show that Congress may not have anticipated a particular application of Title VII, such as same-sex harassment or sexual orientation discrimination, but that does not stand in the way of interpreting Title VII in that manner.

Second, the Seventh Circuit looked to Loving and its progeny (including LGBT-related cases such as Lawrence v. Texas dealing with Texas's sodomy law) to apply an associational discrimination analysis to support its holding, i.e., an employer discriminating against a female employee marrying another woman is associational discrimination on the basis of sex in violation of Title VII.

Finally, the Seventh Circuit looked to the Supreme Court's recent LGBT decisions in Windsor and Obergefell for support for its decision. The Seventh Circuit noted that bizarre results could ensue if the law were to protect an individual's right to "be married on a Saturday," but then allow that an employee be "fired on Monday for just that act."

Hively's Future Legal Impact

No petition for certiorari is being filed with the U.S. Supreme Court in Hively. For employers doing business in Indiana (where no LGBT protections previously existed), Illinois, and Wisconsin, Hively is the law of the land. This means that adverse actions taken on the basis of sexual orientation are unlawfully taken on the basis of sex. Employers nationally should continue to note the legal requirements applicable to them under federal, state, county, and local law and comply accordingly in policies, procedures, and practices.

Hively creates a circuit split with the Eleventh Circuit. A few weeks before Hively, a divided Eleventh Circuit held that Title VII does not protect against sexual orientation discrimination, relying on a 1979 Fifth Circuit decision. Hively may inspire more circuit courts to hear the issue en banc since all but a few have precedent on the books holding that sexual orientation is not covered under Title VII's definition of "sex." Case in point, mere weeks after Hively, a three-judge panel of the Second Circuit rejected a gay employee's request that the Second Circuit overturn circuit precedent on which the trial court relied when it tossed his sexual orientation claim under Title VII. The three-judge panel told the employee that Second Circuit precedent excluding sexual orientation from sex under Title VII tied their hands, and lamented that reconsideration of that binding interpretation could only be done by all of the Second Circuit's judges sitting en banc. The request of the employee, whose estate has already said it will seek full review by the Second Circuit, comes on the heels of another request to the Second Circuit to reconsider the same question after a three-judge panel affirmed dismissal of a gay executive's Title VII sexual orientation claim on April 30.

A decision by the Second Circuit sitting en banc may deepen the circuit split, as would other circuit courts adopting the reasoning or result in Hively. Nevertheless, the circuit split already exists between the Eleventh and Second Circuits now. Since a circuit split can only be resolved by the Supreme Court, it seems inevitable the high court will take up the issue of whether sexual orientation discrimination is prohibited under Title VII without being tethered to a gender stereotyping or same-sex harassment cause of action. The recent election and current composition of the Court with Justice Gorsuch's recent appointment, as well as the future composition of the Court, may play a pivotal role in how the legal issue is ultimately decided. Of course, the reintroduction of the Equality Act of 2017 by Congressman David N. Cicilline and U.S. Senator Jeff Merkley on May 2, 2017, could put the question to rest once and for all if the legislation gains traction despite past failures during the bill's previous introductions.

While the EEOC remains focused on LGBT protections for now and more courts may rely on Hively to read Title VII as prohibiting sexual orientation discrimination under Title VII's definition of sex, this strategic initiative and court interpretation of Title VII could be limited by religious freedom laws and orders. During his campaign, President Trump confirmed he would support the First Amendment Defense Act, which would serve to prevent the federal government from taking adverse action against employers that discriminate based on sexual orientation. So far, the Trump administration has not repealed LGBT protections for employees of federal contractors. However, at least one draft executive order on religious freedom has been leaked and the rumor mill is swirling that the Trump administration stands poised to sign an executive order in the near future.

Click here to view the May/June 2017 issue of The Employment Law Authority in its entirety.

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