11th Circuit Holds That Title VII Does Not Protect Against Sexual Orientation Discrimination. Second Circuit Follows Suit.
Published by Eric A. Welter and Megan M. Carboni on April 18, 2017
Sexual orientation bias is still not covered under Title VII in the Eleventh and Second Circuits. But employers should keep watching and looking to the near future before drastically altering any anti-harassment or anti-discrimination policies protecting LGBT employees.
Sitting in a panel of three judges, the Eleventh Circuit held that sexual orientation discrimination is not prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e (“Title VII”). In Evans v. Georgia Regional Hospital, the majority of the panel relied on precedent set in 1979, stating that sexual orientation discrimination is not recognized under Title VII. No. 15-15234, 2017 WL 943925 (11th Cir. Mar. 10, 2017) (citing Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)). In dismissing the plaintiff’s asserted sexual orientation discrimination claim, the court also vacated a portion of the district court’s order dismissing plaintiff’s claim of discrimination based on gender stereotyping, which is actionable under Title VII. The Eleventh Circuit’s March 2017 outcome in Evans has been closely watched, as both the Second and Seventh Circuits are also revisiting the hot-button issue of whether Title VII prohibits sexual orientation bias. In fact, on March 27, the Second Circuit similarly concluded that Title VII does not cover sexual orientation discrimination but does cover sex or gender stereotyping, blurry though the line may be between the two claims.
Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Under Title VII, gender discrimination is prohibited, but an employer’s sexual orientation discrimination has not been historically prohibited. Meaning, employees cannot base successful claims of Title VII discrimination on their sexual orientation alone, rather a successful Title VII claim must show that the asserted discriminatory conduct was based on gender or gender stereotypes. In light of legal same sex marriage and added legal protections of LGBT individuals, the line between the two Title VII discrimination theories is blurred, and claims of Title VII sexual orientation discrimination are being filed with greater frequency by aggrieved employees. As more cases challenge this prohibition, courts are being asked to draw a distinction between gender discrimination and sexual orientation discrimination.
In Evans, the pro se plaintiff, Jameka Evans, claimed that she had been harassed by her former employer, Georgia Regional Hospital, because she is a lesbian and did not conform to gender norms of appearance and demeanor. The district court dismissed Ms. Evans allegations in total, to which Ms. Evans appealed to the Eleventh Circuit. Holding that Title VII does not prohibit employer sexual orientation bias, the Eleventh Circuit stated that neither Supreme Court opinions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75 (1998), allowing Title VII claims of gender discrimination or same-sex discrimination were on point. Citing Randall v. Scott, the Eleventh Circuit reasoned that in order to overturn a prior decision of the court, the asserted “Supreme Court decision must clearly be on point.” 610 F.3d 701, 607 (11th Cir. 2010). Because neither Price Waterhouse nor Oncale specifically address whether sexual orientation discrimination is prohibited by Title VII, the Eleventh Circuit affirmed precedent under Blum, 597 F.2d at 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII….”).
The Second Circuit followed suit just shortly after the Evans opinion was issued, finding that an HIV-positive advertising executive’s claims that his employer, Omnicon Group Inc., harassed him because of his effeminacy and sexuality were only recognized in part under Title VII. In Christiansen v. Omnicon Group Inc., the Second Circuit held that Christiansen’s gender stereotyping claim was cognizable under Price Waterhouse, but Christiansen’s sexual discrimination claim was not recognized under precedent set by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). Although the Second Circuit made it clear that it had no power to overturn Simonton, Chief Judge Robert Katzmann went further in his concurring opinion, stating that “in the context of the appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it may well be that the Supreme Court will address it.” Christiansen, No. 16-748, 2017 WL 1130183, *9 (2d Cir. Mar. 27, 2017) (Katzmann, C.J., concurring).
In both Evans and Christiansen, the Equal Employment Opportunity Commission (“EEOC”) supported both appellants’ assertions that sexual orientation discrimination is in fact prohibited by Title VII. The EEOC is tasked with enforcing Title VII’s prohibition on certain types of employment discrimination. According to the EEOC, sexual orientation discrimination is prohibited under Title VII. The EEOC’s position on the issue is based on three reasons (see EEOC, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers”):
- Sexual orientation discrimination necessarily involves treating an employee differently because of his or her sex;
- Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex; and
- Discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.
And finally, a third appeal was argued on the same issue before the Seventh Circuit en banc in November 2016 in Hively v. Ivy Tech Community College, No. 15-1720. Unlike the Eleventh and the Second Circuits, the Seventh Circuit signaled during oral arguments that it could overturn precedent and find that Title VII prohibits sexual orientation discrimination. A final opinion has not yet been issued in Hively. The Hively appeal leaves the door open for a circuit split regarding the issue of sexual orientation discrimination and Title VII coverage, which in turn could lead to a final determination by the Supreme Court.
While employers wait on the outcome in Hively v. Ivy Tech Community College, employers must remember state and local prohibitions on sexual orientation discrimination in the workplace. States such as Vermont, Connecticut, and New York all have laws prohibiting such discrimination. No doubt, additional state and local protections may result depending on the outcome in Hively. Further, the opinions discussed above should bear as a strong reminder that while sexual orientation discrimination is not currently recognized under Title VII, gender discrimination is, and these claims have largely overlapping characteristics. Thus, employers should continue to hone workplace anti-harassment and anti-discrimination policies on sex and gender discrimination in light of these opinions.Topics: Civil Rights Act, EEOC, Equal Employment Opportunity Commission, sexual orientation discrimination, Title VII