Working for Justice

Because of Sex – Does Title VII Prohibit Harassment based on Sexual Orientation?

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against an employee “because of such individual’s race, color, religion, sex, or national origin.” When an employer discriminates against an employee because of his or her gender, there is, therefore, no question that Title VII makes that conduct illegal. But what about in cases of LGBTQ discrimination? Is discrimination against sex the same as discrimination against sexual orientation, and therefore prohibited by Title VII?

Courts around the country have found the answer to that question to be endlessly complex, centering around what it means to discriminate against an employee because of their “sex.” But the answer may soon be much clearer, as the United States Court of Appeals for the Seventh Circuit appears poised to hold that discrimination on the basis of sexual orientation is prohibited by Title VII for the first time in a case called Hively v. Ivy Tech Community College. This post provides an overview of how the law has developed to protect LGBTQ employees from discrimination and how Hively became such a critical case.

Until now, every federal appellate court to address the question has concluded that Title VII does not prohibit discrimination based solely on sexual orientation. And Congress has repeatedly considered legislation that would extend Title VII to cover sexual orientation, called the Employment Nondiscrimination Act (“ENDA”), but rejected that legislation every time.

That means that under federal law, until very recently, it was perfectly legal to fire an employee specifically and only because he is gay. (Note that many states do have anti-discrimination laws that specifically prohibit discrimination on the basis of sexual orientation that apply only in those states. LGBTQ individuals who work in those states would be protected under state law, but not federal law.) Courts have found, however, that under certain circumstances Title VII did prohibit discrimination against LGBTQ individuals, not because of their sexual orientation, but because the discrimination was linked to gender discrimination.

The United States Supreme Court issued the key decision in that analysis in 1989, when it concluded that Title VII’s prohibition on sex discrimination also protects employees who fail to comply with typical gender stereotypes in a seminal case called Price Waterhouse v. Hopkins. In that case, a female employee who was not promoted to partner at Price Waterhouse was told that her chances for promotion could be improved if she would “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.” Id. at 235. The Supreme Court declared that this type of sex-based stereotyping was illegal employee discrimination in violation of Title VII. The Court explained its decision by making clear that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

Under this “Price Waterhouse” doctrine, employees have been able to sue their employers successfully under Title VII when they are discriminated against for deviating from expected gender norms. This doctrine is obviously relevant to LGBTQ discrimination attorneys and their clients because frequently LGBTQ individuals are discriminated against precisely because of their failure to conform to stereotypical gender norms. Shouldn’t that discrimination be prohibited under the Price Waterhouse doctrine? Again, courts who attempted to answer that question found that the answer was complicated.

Some courts did apply the Price Waterhouse framework in cases involving gay employees. For example, the federal appeals court for the Ninth Circuit found that a gay male employee who was taunted by co-workers for having feminine traits could sue for sexual harassment under Title VII in Rene v. MGM Grand Hotel, Inc. But the Ninth Circuit was careful to clarify that it based its decision on the fact that the harasser “engaged in severe or pervasive unwelcome physical conduct of a sexual nature.” There was no claim for discrimination based on sexual orientation especially because, the court found, the “employee’s sexual orientation is irrelevant for purposes of Title VII.” The Rene case, therefore, represented a pattern where some courts began to allow LGBTQ employees to bring claims in which the employees said they faced discrimination based on gender non-conformity by ignoring the employee’s sexual orientation.

But these claims tended to be successful only if those employees were clear that the discrimination they faced was not primarily because of their sexual orientation. For example, in Dawson v. Bumble & Bumble, the Second Circuit considered the case of a lesbian who claimed that she was discriminated against both because she did not conform to feminine stereotypes and because she was gay. The Second Circuit started from the understanding that Title VII would not apply to discrimination that was due to the plaintiff’s sexual orientation but would apply to discrimination that was due to the fact that she was masculine presenting. The district court clearly struggled with the case, finding it difficult to tell whether the employer was “motivated by animus toward her gender, her appearance, her sexual orientation, or some combination of these” because “the borders [between these classes] are so imprecise.” The Court of Appeals ultimately found that it could not determine whether the employer’s discrimination was based on the employee’s gender or on her sexual orientation, and so concluded that Title VII did not apply because the discrimination was not clearly based on sex stereotyping.

The Sixth Circuit also acknowledged the difficulty of distinguishing between sex-stereotyping claims under Price Waterhouse and sexual orientation claims in a case called Vickers v. Fairfield Med. Ctr. The court acknowledged the obvious: “In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Rather than concluding that sexual orientation should, therefore, be covered by Title VII, however, the Sixth Circuit adopted the opposite position and rules that all sex-stereotyping claims where there was also a claim of sexual orientation discrimination must be denied.

The result of these efforts to draw a line between discrimination based on sex stereotyping and discrimination based on sexual orientation have therefore led to absurd results: Title VII provides protection for effeminate-presenting men and masculine-presenting females from employment discrimination, but only if they are (or are believed to be) heterosexuals or if discrimination specifically based on their sexual orientation is ignored.

With those results in the background, in 2015 the commissioners of the Equal Employment Opportunity Commission concluded for the first time that Title VII’s prohibition on discrimination on the basis of sex also prohibited discrimination on the basis of sexual orientation. To reach that conclusion, the EEOC found that “sexual orientation is inherently a ‘sex‐based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII” in an administrative decision called Baldwin v. Foxx.

To support its finding, the Commission articulated two primary reasons. First, it found “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” The EEOC gave the example of a woman who is suspended for placing a photo of her female spouse on her desk, compared to a man who faces no consequences for the same act. While the employer is discriminating against the female employee because she is a lesbian, the employee would not have been suspended but for the fact that she is a woman. That is, the EEOC concluded, discrimination necessarily based on gender consideration. Second, the Commission relied on the Price Waterhouse framework. Under that framework, sexual orientation discrimination is prohibited because it is a form of discrimination based on gender stereotypes. LGBT employees face discrimination by definition for failing to live up to societal norms about appropriate masculine and feminine behaviors because they are attracted to the same sex, and therefore face discrimination because of their sex.

The EEOC is an administrative agency whose decisions apply only to employees of the federal government, and whose interpretation of Title VII is not binding on federal courts. Perhaps aware that their groundbreaking decision would have limited practical effect unless federal courts followed their analysis, the EEOC directly challenged federal courts to reconsider earlier decisions finding that Title VII did not prohibit sexual orientation discrimination.

In July 2016, the Seventh Circuit became the first United States Court of Appeals to consider the question after the EEOC’s decision in Baldwin. In Hively v. Ivy Tech Community College, the court acknowledged the long-simmering difficulty in distinguishing sex-stereotyping discrimination, which Title VII prohibits under Price Waterhouse, and sexual orientation discrimination. Indeed, the court specifically credited the EEOC’s decision for placing renewed focus on the problem: “The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC’s decision … threw fuel on the flames.”

In the decision itself, a three-judge panel of the Court of Appeals quickly concluded that it could not allow a claim for sexual orientation to proceed under Title VII because “[o]ur precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination.” In other words, because the court had already concluded that Title VII did not apply to sexual orientation discrimination in earlier cases, the panel had to follow those conclusions in Hively as well.

But the decision is a remarkable one because, after the court concluded that the plaintiff must lose because of prior precedent in a few short pages, the court goes on to explain for 35 pages why that is the wrong result. As the court highlights, in light of the Supreme Court’s decision that same-sex marriage is a right protected by the constitution in Obergefell v. Hodges, continuing to hold that Title VII does not prohibit sexual orientation discrimination is increasingly problematic. There is now “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.”

Though the panel of judges found that the sexual orientation discrimination was not prohibited by Title VII, that is not the end of the Hively case. A full Court of Appeals can review the ruling of a three-judge panel in a process called “en banc” review, and the court sitting en banc does have the authority to reverse the prior precedent on the Circuit, unlike a three-judge panel. And in October 2016, the Seventh Circuit agreed to undertake an en banc review of the Hively decision.

On November 28, 2016, all of the judges of the Seventh Circuit heard oral argument on the Hively case. While it is always a risk to try to predict the outcome of a case based on oral arguments, most legal observers agreed that the full court appeared poised to find that discrimination on the basis of sexual orientation is prohibited by Title VII. Slate’s Mark Joseph Stern has a thorough and entertaining account of the Seventh Circuit’s en banc oral argument that provides insight into the judges’ questions and their thinking.

The Seventh Circuit has not yet issued its final opinion in Hively. Once the decision is issued, it is likely that the losing party will attempt to convince the United States Supreme Court to review the case and make a final and nationwide determination about whether Title VII applies to sexual orientation. But it is clear that we have arrived at a tipping point for federal courts’ interpretation of Title VII protections as they apply to LGBTQ individuals.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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