Yesterday we looked at how the 7th U.S. Circuit Court begrudgingly decided that banning sexual orientation discrimination isn’t guaranteed by law. Today we’ll take a look at how the EEOC looks at the same issue.
EEOC’s Position
The Hively court also said it was noteworthy that the U.S. Equal Employment Opportunity Commission (EEOC), which enforces Title VII, takes the opposite position.
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EEOC determined last year 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” (Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641, at *5, *10 (July 16, 2015)).
While that decision only applies to federal employment, the commission has been pursuing such claims in the private sector. (See Sexual orientation and gender identity discrimination lawsuits take hold.)
In Baldwin, the EEOC criticized courts for merely citing old decisions without performing any new analysis, particularly in light of a 1989 Supreme Court ruling, Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In that case, the high court determined that a law firm had discriminated against an attorney based on her sex (through gender stereotyping) when it suggested that she failed to make partner because she wasn’t feminine enough.
The Hively court said it takes the commission’s criticism seriously but that Price Waterhouse does not clearly state that discrimination based on sexual orientation is sex discrimination. Instead, it left courts in the previously referenced position of trying to figure out how to separate gender nonconformity discrimination from sexual orientation discrimination.
If the two could not be disentangled, sexual orientation discrimination would clearly be prohibited under the law, the 7th Circuit said. But that is not the case, so “this court must continue to extricate the gender nonconformity claims from the sexual orientation claims.”
The court again acknowledged that this creates an “uncomfortable result”: The more visibly and stereotypically gay or lesbian a plaintiff behaves and looks, the more likely a court is to recognize a claim of gender nonconformity. “Plaintiffs who do not look, act, or appear to be gender non-conforming but are merely known to be or perceived to be gay or lesbian do not fare as well in the federal courts,” it said, calling this result an “odd state of affairs.”
A Call for Change
The 7th Circuit said it seems unlikely that society will continue to condone a legal structure in which employees can suffer adverse employment actions based on their sexual orientation. “The agency tasked with enforcing Title VII does not condone it … many of the federal courts to consider the matter have stated that they do not condone it … and this court undoubtedly does not condone it,” it said.
The 7th Circuit then called on the Supreme Court to “step in and tell us” if the interpretation in Hively is incorrect. But until that time—or until Congress takes action—“we must adhere to the writing of our prior precedent,” it said, affirming a lower court’s ruling.
The plaintiff’s counsel, Gary Nevins, said in a statement that the precedents on which the 7th Circuit relied need to be reconsidered. Nevins, an employment fairness strategist for Lambda Legal, also called on Congress to pass the Equality Act (H.R. 3185 and S. 1858), a bill pending in Congress that would amend the Civil Rights Act to protect sexual orientation and gender identity.
Nevins told HR.BLR.com® that he plans to ask the court to rehear the case en banc—with all of the court’s judges instead of the usual three-judge panel.