United States: Whether Title VII Forbids Sexual Orientation Discrimination Is Now Ripe For SCOTUS Review

Last Updated: November 21 2017
Article by Donald C. Davis

Ripe for decision this term – if the United States Supreme Court grants the recently filed petition for certiorari in Evans v. Ga. Reg'l Hosp., 850 F.3d 1248 (11th Cir. 2017) – is wheth­er Title VII's explicit proscription against sex discrimination also forbids an employer from discriminating against an ap­plicant or employee because they are gay, lesbian, or bisexual.

Two women, Kimberly Hively and Jameka Evans – both of whom allege they were targeted for employment discrimi­nation because they are attracted to other women – set the stage for a judicial showdown between the two camps in this battle. Evans is the plaintiff whose loss before the Eleventh Circuit may be taken up for Supreme Court review; Hively's victory before the Seventh Circuit sets up the circuit split which makes certiorari a possibility. On one side of the issue are those who say that the courts cannot and should not inter­pret the text of Title VII to include sexual orientation within the scope of Title VII's ban on sex discrimination, and that it is only within the province of Congress to do so. On the other side are those, including Chief Judge Wood of the Seventh Circuit and a majority of her Seventh Circuit colleagues, who quip that "[i]t would require considerable calisthenics to re­move the 'sex' from 'sexual orientation.'" To add to the mix, the full Second Circuit Court of Appeals also seems poised to weigh in, granting rehearing en banc on the question in Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), after a three-judge panel said it was bound to follow circuit precedent that sexual orientation discrimination is not encompassed by the civil rights statute.

In Evans' case, the Eleventh Circuit fastened its seatbelt for a ride in its time machine back to 1979, dusting off a case decided by its jurisdictional predecessor (Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)) that the court said pre­cludes it from ruling in Evans' favor. Critics of the Eleventh Circuit's decision (including a dissent from the panel's major­ity opinion by Circuit Judge Rosenbaum) say that the panel ignored several enlightened decisions of the Supreme Court in the intervening years since the Fifth Circuit ruled that Title VII does not contemplate protection against sexual orienta­tion discrimination.

Indeed, the Seventh Circuit relied on those intervening Su­preme Court cases in its en banc decision in Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017), becom­ing the first federal appellate court to hold that Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of sexual orientation.

Building on a series of Supreme Court decisions extending Title VII's protections against sex discrimination beyond the common interpretation of the statutory text in other similar realms, in Hively the Seventh Circuit determined that the statute's prohibition on sex discrimination encompassed dis­crimination on the basis of sexual orientation regardless of whether "Congress ... realized or understood the full scope of the words it chose." The court noted, for example, that in On­cale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the late Justice Antonin Scalia extended Title VII's protec­tions to same-sex victims of sexual harassment because, while same-sex harassment "was assuredly not the principal evil Congress was concerned with when it enacted Title VII ... [s]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

In the view of the Seventh Circuit in Hively, Supreme Court precedent holding that Title VII prohibits same-sex harassment and gender stereotyping, combined with Fourteenth Amend­ment prohibitions against restricting access to marriage based upon race and sex, led inexorably to the conclusion that Title VII forbids sexual orientation discrimination. The eight-judge majority rested its conclusion on three principal theories: (1) discriminating against individuals because of their sexual ori­entation is engaging in sex stereotyping in violation of Title VII; (2) sexual orientation discrimination is "paradigmatic sex dis­crimination," meaning the plaintiff was subject to sex discrimi­nation due to the fact that she was a woman dating a woman rather than a man dating a woman; and (3) sexual orientation discrimination is associational discrimination, a theory borne out of Fourteenth Amendment marriage jurisprudence and fre­quently applied in Title VII cases.

The Seventh Circuit first observed that in Price Water­house v. Hopkins (1989), the Supreme Court determined that an employer unlawfully discriminated against a female associate when it denied her partnership because she failed to conform to its notions of how a woman should act and dress. The Seventh Circuit reasoned that discriminating against a woman because she is a lesbian is exactly the same: lesbians fail to conform to stereotypes about women; namely, that women should form intimate relationships with men. Ac­cordingly, the court opined, Hively represented the "ultimate case of failure to conform to the female stereotype ... she is not heterosexual." Moreover, the court stated, in Oncale the Supreme Court rejected earlier cases concluding that Title VII's drafters intended only to protect women against male-initiated harassment, clarifying that a man can bring a sexual harassment claim against another man. In the Seventh Cir­cuit's view, together these cases represented a departure from a traditional understanding of sex-based discrimination and opened the door for broader protections under Title VII.

Next, the Seventh Circuit applied the "comparative meth­od" to "isolate the significance of the plaintiff's sex to the em­ployer's decision." The court asked, "has she described a situ­ation in which, holding all other things constant and changing only her sex, she would have been treated the same way?" Answering this question in the negative, the court found that Hively prevailed under a simple textual analysis. She was, in­deed, denied employment "because of...sex." In other words, according to Hively's allegations, if she were a man dating a woman the employer would not have refused to hire her into a full-time position.

Finally, the Seventh Circuit extrapolated from the holdings in two landmark marriage rights cases to conclude that dis­crimination against a gay or lesbian person is unlawful associ­ational discrimination because of sex. In Loving v. Virginia, 388 U.S. 1 (1967) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court invalidated state marriage laws that forbade, respectively, mixed-race and same-sex mar­riages. Loving established that discrimination on the basis of the race with whom a person associates is a form of racial discrimination. Obergefell applied that reasoning to same-sex relationships when it invalidated state laws that discriminat­ed in the provision of marriage licenses based upon sex. In Hively, the court noted that its panel had previously identi­fied the illogical legal regime earlier decisions had established "in which a person can be married on Saturday and then fired on Monday for just that act." While the marriage cases pre­sented federal constitutional questions distinct from Hively's question of statutory interpretation, the court found that the same logic applied. Accordingly, the court concluded that dis­crimination against someone based on the sex of the person she dates amounts to discrimination because of sex in exactly the same way that discrimination against a white man because he marries a black woman is discrimination because of race.

While Kimberly Hively's employer decided not to appeal the Seventh Circuit's ruling, on September 7, Jameka Ev­ans' lawyers filed a petition for certiorari, urging the Court to take up Evans' appeal of the Eleventh Circuit's ruling that her employer could discriminate against her on the basis of her sexual orientation. The Second Circuit reheard Zarda en banc in late September. The Supreme Court has yet to rule on Evans' petition, but conventional wisdom and history suggest that because of the circuit split that now exists, the Court is more likely to step in sooner than later to resolve the issue.

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