As a developing area of the law, there are three noteworthy updates for cases relating to LGBTQ discrimination under Titles VII and IX of the Civil Rights Act of 1964:
First, in Hively v. Ivy Tech Community College of Indiana, the full Seventh Circuit Court of Appeals found that discrimination on the basis of sexual orientation in employment is prohibited by Title VII. No. 15-1720 (7th Cir. April 4, 2017).
Writing for the majority, Chief Judge Diane Wood found that sexual orientation discrimination was discrimination “on the basis of … sex” under two common theories:
The first is “the comparative method” in which the court considers what relation the employee’s sex has to the employer’s decision. In assessing the discriminatory nature of a policy, the court holds all things constant except the employee’s sex and determines if the adverse employment action or policies would have applied but for the employee’s sex. Here, holding all things equal (including the female sex of the employee’s spouse) but changing the employee’s sex to male, the court noted that such adverse employment action would not have happened but for the employee’s female sex. Accordingly, the court found that sexual orientation discrimination is sex discrimination under Title VII.
The second theory is under the Supreme Court’s decision in Price Waterhouse v. Hopkins and its progeny, in which courts have developed a theory prohibiting discrimination on the basis of an employee’s nonconformance with gender stereotypes. This theory has been used by courts (including the U.S. Court of Appeals for the Sixth Circuit which presides over federal cases originating from federal courts in Ohio) to find that discrimination on the basis of transgender status is prohibited by Title VII. However, many circuits have found that sexual orientation discrimination is distinct and excluded from Title VII protection. The Court in Hively noted that discrimination against a gay or bisexual employee fits squarely within the gender stereotype theory of sex discrimination as such employees do not comply “with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.”
Under both theories, the court found that sexual orientation discrimination was discrimination “on the basis of … sex” for purposes of Title VII. This decision will likely have persuasive authority in future cases outside of the Seventh Circuit and may lead the Supreme Court to weigh in on the current split amongst Federal Circuits in Title VII interpretation.
Second, the case of G.G. v. Gloucester Cnty. Sch. Bd. involved a claim in the Fourth Circuit by a transgender student who wished to use the restroom that corresponds with his gender identity in a public school. (Mar. 6, 2017). FHKAD reported on this case in a prior newsletter. To read that article, please click here.
The U.S. Supreme Court granted certiorari in October and was prepared to hear the case this term; however, the court decided to send the case back to the U.S. Court of Appeals for the Fourth Circuit. The court did so, because the Fourth Circuit’s opinion relied in part on Obama Administration guidance from the DOJ and DOE in holding that Title IX required access for transgender students in public schools to restrooms corresponding with their gender identities. That guidance was revoked by the Trump Administration this past February. Now, the Fourth Circuit will decide the case again in the absence of agency guidance weighing in favor of transgender student restroom access. The Supreme Court may still hear the case, but it will not do so this term.
Third, in Evans v. Ga. Reg’l Hosp., the Eleventh Circuit sent back a decision to the lower court that had dismissed a sexual orientation discrimination suit. No. 15-15234, (11th Cir. Mar. 10, 2017). It involved a security guard employed by the Georgia Regional Hospital in Savannah who alleged that she was subjected to a hostile work environment because of her sexual orientation and nonconformance with stereotypically female gender expression. A majority of the Eleventh Circuit panel found that her claims based on sexual orientation discrimination under Title VII were foreclosed by a 28-year-old decision of its predecessor circuit, which could only be overturned by a decision of the full Eleventh Circuit sitting en banc or a decision of the U.S. Supreme Court that directly contradicts the court’s precedent. However, the majority remanded the decision to the lower court and provided that the employee could amend her complaint (now with the help of legal counsel) to bring a claim for sex stereotype discrimination pertaining to gender expression other than her sexual orientation, i.e.., her decision to wear a men’s uniform and otherwise present herself in a more masculine manner. This decision is similar to yet another case recently decided by the Second Circuit, Christiansen v. Omnicom Group, in which the three-judge appellate panel held that sexual orientation was not a protected class under Title VII.
The Sixth Circuit Court of appeals, presiding over federal courts sitting in Ohio has thus far excluded sexual orientation discrimination from the protections of Title VII. Vickers v. Fairfield Med. Ctr. (6th Cir. 2006). However, cases like those described above are being brought in federal courts across the country. Employers should be mindful of potential litigation that may arise from an adverse employment decisions on the basis of an employee’s sexual orientation.
We will continue to monitor litigation in this area of the law and keep you apprised of any developments. Please contact FHKAD Attorney H. Devon Collins at dcollins@fishelhass.com with any questions.