Since the civil rights movement of the 1960s, state and federal laws have been enacted to prohibit employment discrimination against individuals on the basis of their race, ethnicity, age, disability, religion, and gender. Until recently, virtually none of those antidiscrimination laws covered employment discrimination based on sexual orientation or gender identity. Over the last decade, as issues related to sexual orientation and gender identity have moved to the forefront of social consciousness, several states and certain federal agencies, including the Equal Employment Opportunity Commission (EEOC), have started to recognize and address employment discrimination in that context. 
Recognition of discrimination based on sexual orientation and gender identity has not been universal. Federal law is not resolved on the issue, and recent federal circuit court rulings have further complicated things. This article focuses on the recent appellate court rulings and how they are changing the employment discrimination landscape under federal law.
Fluctuating federal position
Currently, federal employment law, including Title VII of the Civil Rights Act of 1964, does not expressly prohibit discrimination and harassment based on sexual orientation. Title VII explicitly makes it an “unlawful employment practice for any employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual, . . . because of such individual’s race, color, religion, sex, or national origin.” However, it does not mention sexual orientation. Although bills prohibiting discrimination based on a person’s sexual orientation have been presented, Congress has been unwilling to pass legislation that would ban such discriminatory employment practices.
The absence of specific legislation has resulted in conflicting case law relating to sexual orientation discrimination. Relying on the fact that Title VII does not explicitly include sexual orientation as a protected characteristic, some federal courts have refused to extend the law’s antidiscrimination provisions to members of the LGBT community. Those courts have rejected arguments that Title VII’s prohibition against discrimination “because of sex” applies to sexual orientation.
For example, in a 1999 case Higgins v. New Balance Athletic Shoe, Inc., the U.S. 1st Circuit Court of Appeals ruled that “Title VII does not proscribe harassment simply because of sexual orientation.” Likewise, the 3rd Circuit has found that “Title VII does not prohibit discrimination based on sexual orientation.” In fact, as recently as 2008, the 2nd Circuit ruled in Kiley v. Am. Soc. For Prevention of Cruelty to Animals that sexual orientation is not a protected class under Title VII and is therefore not protected by the federal antidiscrimination laws. These courts have generally reasoned that the term “sex” in Title VII refers only to whether a person is male or female and has nothing to do with the gender of someone to whom the person may be attracted.
Other federal courts have refused to follow that line of reasoning. These courts have concluded that the prohibition on discrimination “because of sex” under Title VII includes sexual orientation. For example, the U.S. District Court for the Central District of California declared in Videckis v. Pepperdine University in 2015: “Sexual orientation discrimination is not a category distinct from sex or gender discrimination. . . . [C]laims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”
Some states, including Utah, have passed laws to make discrimination based on sexual orientation expressly illegal. One of the reasons states have enacted such legislation is the confusion at the federal level. Two recent cases in which federal appellate courts reached opposite conclusions about Title VII’s coverage of sexual orientation discrimination have further clouded the issue and highlighted the schism between the federal circuits.
Within the last two months, the 11th Circuit and the 7th Circuit have issued written decisions addressing whether sexual orientation is covered by Title VII. The courts’ rulings stand in stark contrast to each other. As we explain more fully below, the 11th Circuit has followed the majority of courts in holding that Title VII does not extend to sexual orientation discrimination. On the other hand, the 7th Circuit reversed the precedent in that circuit, holding for the first time in a landmark ruling that sexual orientation discrimination can be remedied under federal law.
11th Circuit case
Jameka K. Evans worked for Georgia Regional Hospital as a security officer from August 1, 2012, until October 11, 2013, when she voluntarily resigned from her position. She alleged (and the court accepted as true) that she had been discriminated against by being denied equal pay for equal work, harassed, physically assaulted or battered, and targeted for termination because she failed to conform to traditional sex stereotypes. That discrimination, she claimed, violated Title VII’s prohibition against discrimination “on the basis of sex.”
The trial court rejected and dismissed Evans’ claims, stating that Title VII “was not intended to cover discrimination against homosexuals.” The court also dismissed her sex stereotyping claim, stating that such claims are “just another way to claim discrimination based on sexual orientation.” She appealed the dismissal of her claims to the 11th Circuit.
On appeal, Evans argued that the district court’s ruling should be reversed because she had been subjected to illegal discrimination for failing to conform to gender stereotypes and because LGBT individuals may properly bring separate discrimination claims under Title VII. She emphasized that she believes discrimination based on sexual orientation is a form of sex discrimination under Title VII. On March 10, 2017, the 11th Circuit affirmed the trial court’s ruling in a 2-1 decision.
The appellate court first affirmed the district court’s dismissal of Evans’ sex stereotyping claim. However, the 11th Circuit concluded that the trial court erred in ruling that such a claim is invalid and just another way to assert sexual orientation discrimination under Title VII. The court specifically recognized that sex stereotyping claims are valid. Nevertheless, it affirmed the dismissal of Evans’ case because she failed to provide sufficient evidence to create a plausible inference that she had suffered discrimination based on a sex stereotype. The appellate court sent the case back to the district court to allow her to make another attempt at pleading a valid claim under her sex stereotyping theory.
The 11th Circuit also affirmed the dismissal of Evans’ claim of sexual orientation discrimination “because of her sex.” Disagreeing with her argument that such a claim is proper under Title VII, the court ruled that the 11th Circuit’s “binding precedent forecloses” an action for sexual orientation discrimination under Title VII. Based on that ruling, sexual orientation discrimination is not a valid claim in Alabama, Florida, and Georgia—the states covered by the 11th Circuit. Of course, the full 11th Circuit may eventually rehear Evans’ case. Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir., March 10, 2017).
7th Circuit case
By contrast, the 7th Circuit concluded on April 4 that Title VII prohibits employers from discriminating against employees on the basis of their sexual orientation. In a complete reversal of its past precedent, the court ruled for the first time that “discrimination on the basis of sexual orientation is a form of sex discrimination.”
Kimberly Hively, who is openly lesbian, was a part-time adjunct professor at Ivy Tech Community College’s South Bend campus starting in 2000. Between 2009 and 2014, she applied for at least six full-time teaching positions at the college, but was rejected each time. Then, in July 2014, her part-time contract was not renewed. She believed the college failed to promote her to a full-time position and refused to renew her contract because of her sexual orientation.
After pursuing a charge with the EEOC, Hively filed suit in federal district court, claiming discrimination under Title VII based on her sexual orientation. The district court dismissed her claims, and she appealed to the 7th Circuit. During the summer of 2016, a three-judge panel of the court issued a written opinion affirming the dismissal of her claims. Holding to the 7th Circuit’s three decades of precedent on the issue, the panel ruled: “Our precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination.”
Not to be deterred, Hively asked for an en banc rehearing by all the judges of the 7th Circuit. On October 11, 2016, the 7th Circuit granted her request. When the entire court considered the issue, it completely reversed its past precedent to conclude that discrimination based on sexual orientation is unlawful under Title VII. In doing so, the court noted that the three-judge panel correctly pointed out that it was bound to follow circuit precedent. Further, the court explicitly recognized that it does not have the authority to add a new protected class to Title VII, so it considered what it means to discriminate on the basis of sex.
The full court concluded that sexual orientation discrimination is necessarily “sex” discrimination under Title VII. The court specifically declared that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Accordingly, the court overturned its prior case law to the contrary. Hively v. Ivy Tech Community College, South Bend, No. 15-1720 (7th Cir., Apr. 4, 2017).
Supreme Court showdown
Given the split in the federal circuits, it is almost certain that this issue will be addressed sooner rather than later by the U.S. Supreme Court. In fact, it may be that one of the two circuit court decisions (if not both) ― the Hively case from the 7th Circuit—may be the case that ends up at the Supreme Court.
That could make the recent appointment and swearing in of Neil Gorsuch as the ninth justice on the Court all the more important in how the issue of sexual orientation discrimination under Title VII is ultimately decided. Employers will want to watch what happens with these cases.
Message to employers
Employers need to be aware of the potential liability for discrimination on the basis of sexual orientation. An employer that fails to take action to prevent such discrimination may be liable under Title VII or other state or federal discrimination laws. Although the 10th Circuit (whose rulings apply to employers in Utah) has not extended Title VII’s prohibition on discrimination “because of sex” to sexual orientation, Utah employers nevertheless need to be aware of the current status of the law.
Foremost, Utah law expressly prohibits discrimination on the basis of sexual orientation. Further, the 7th Circuit’s Hively ruling, while not directly binding on Utah employers, still affects employers nationwide. For example, employers that have operations in multiple states will have to be aware of the status of the law in each of those states. In addition,
because the 7th Circuit’s decision is at odds with rulings by the other circuits, an appeal to the Supreme Court is almost certain. Keep an eye on this issue because rapid changes in the law could subject your organization to liability if you are not in step with current law.
Ryan B. Frazier is an attorney with Kirton McConkie in Salt Lake City, Utah. He may be contacted at rfrazier@kmclaw.com .
Need to learn more? Join us November 15-17 for the 2017 Advanced Employment Issues Symposium, where Ryan Frazier will present NEW REALITY OF WORK: Expansion of LGBT Rights Under Title VII: What Companies Can Do to Foster Inclusiveness and Minimize the Risk of Costly Lawsuits. This session will provide a framework for ensuring that your employment policies and practices don’t violate LGBT workers’ rights. It will also provide strategic direction on how to ensure a culture of inclusiveness toward LGBT employees. For more information, click here.