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Title VII and Sexual Orientation Discrimination

This post draws on a previous blog published April 7, 2017.

Title VII is our federal law that protects against discrimination in employment. GLAD and others have long made the clear, common sense case that both gender identity and sexual orientation are protected under the law’s prohibition of discrimination “because of sex.”

Exciting recent developments show that —despite existing precedent having held the opposite— more and more judges – and even major businesses – are now agreeing with us on the clarity of the connection between sexual orientation discrimination and sex discrimination. And while the federal circuit courts continue to work through the question, it could also be heading to the U.S. Supreme Court as early as next year.

Last week, Lambda Legal announced they will appeal an employment discrimination case Evans v. Georgia Regional Hospital to the U.S. Supreme Court after the U.S. Court of Appeals for the Eleventh Circuit denied its petition asking the full Court to rehear the case of Jameka Evans, a security guard who was harassed at work and later terminated from her job because she is a lesbian.

Meanwhile, the U.S. Court of Appeals for the Second Circuit has granted en banc review in Zarda v. Altitude Express, a case from New York in which the plaintiff charged that he was fired for being gay.

Read on for further analysis by GLAD Legal Director Gary Buseck on building momentum across the country to clarify that sexual orientation discrimination is already prohibited under Title VII.

In April, for the very first time a federal court of appeals—the United States Court of Appeals for the Seventh Circuit—ruled that gay people are protected from employment discrimination under Title VII. The 8-3 decision came in Hively v. Ivy Tech Community College, brought by a former employee of a community college in Indiana who was repeatedly passed over for full-time employment and was ultimately fired because she is a lesbian.

The initial Seventh Circuit panel to hear Kimberly Hively’s case was essentially forced to agree with existing precedent that sexual orientation claims could not be brought. But two of the three judges deciding the case stated their views that the law had become hopelessly confused, trying to distinguish between gender nonconformity claims and sexual orientation claims. In overly simplistic terms, if a gay man sued because his boss called him a “girl” all the time, he had a claim; but if the boss called him a “fag,” he was out of luck.

Lambda Legal, who represented Hively on her appeal, asked for en banc review— a rehearing of the case before all eleven judges of the Seventh Circuit—and, with amicus brief support from GLAD, NCLR and others, the court agreed.

This breakthrough has been a long time coming. At least as long ago as 1979, GLAD argued in a Massachusetts case, Macauley v. Mass. Comm. Against Discrimination, that discrimination against a gay male employee was sex discrimination under Massachusetts law. The MA high court said it was not free to adopt that view even though “as a matter of literal meaning, discrimination against homosexuals could be treated as a species of discrimination because of sex” because homosexuality is “sex-linked.” Nonetheless, the court said that the settled view had become that “sex discrimination” meant simply discrimination between men and women.

But the foundations of this “settled view” have been shaken recently.

In addition to the EEOC’s clear position since 2015 that Title VII does cover sexual orientation discrimination, some courts have begun to question whether the law has reached a breaking point. And in our recent case against Walmart, the retailer chose to pursue settlement rather than fight the legal issue of sexual orientation coverage under Title VII.

With this dramatic break from the past, we are seeing clear signs that other federal circuits are ready to revisit the question. In cases in both the Eleventh and Second Circuits, judges have called for their courts to revisit the issue en banc. The Eleventh Circuit declined (and, as mentioned above, Lambda Legal has announced they will petition the U.S. Supreme Court for review), but, on May 25, the Second Circuit granted en banc review in Zarda v. Altitude Express, a New York case in which the plaintiff charged that he was fired for being gay.

In granting review in Zarda, that Court specifically invited amicus briefs addressing the question of whether Title VII prohibits sexual orientation discrimination, and GLAD has submitted a brief in partnership with NCLR and WilmerHale. Interestingly, dozens of major U.S. employers have also submitted a brief in this case supporting the prohibition of sexual orientation discrimination under Title VII. In another employment discrimination case currently pending in the First Circuit, which does not squarely raise the question of sexual orientation discrimination as sex discrimination under Title VII, we anticipate filing an amicus brief near the end of July to lay out for that court how the law is developing toward our position and why it is correct. Hopefully, each of these courts of appeals will follow the lead of the Seventh Circuit and agree—as we argue they should— that sexual orientation discrimination is prohibited under Title VII.

It is critical to continue working for explicit, comprehensive nondiscrimination protections at the federal and state levels. While that work continues, increasing understanding by the courts—and by employers—that discrimination against workers because of who they are or who they love is already impermissible under existing law means that more LGBTQ people in more states will have federal nondiscrimination protections in employment more quickly.