The United States Supreme Court recently had the opportunity to resolve a split between the Appellate Circuits regarding whether federal law prohibits discrimination on the basis of sexual orientation. However, the Court declined to take the case that would have allowed it to do so, leaving the Circuit split in place for now.
Traditionally, federal courts have held that Title VII of the Civil Rights Act does not prohibit discrimination on the basis of sexual orientation. The statute makes no mention of sexual orientation amongst the groups that are within its protections. For that reason, Courts have chosen not to read into the statute more than the legislature intended it to include. In fact, that is exactly what the 11th Circuit Court of Appeals, sitting in Atlanta, did in deciding Evans v. Georgia Regional Hospital, Case No. 15-15234 (March 10, 2017). Ms. Evans initially had pled, pro se – that is, acting without an attorney – that she had been discriminated against because she was a lesbian. Ms. Evans then sought to amend her Complaint to include allegations that she also had been discriminated against because she did not conform to traditional gender norms. Interestingly, while federal courts traditionally have held that discrimination on the basis of sexual orientation was not prohibited by Title VII, courts have held that discrimination due to gender non-conformity is prohibited by Title VII. The trial court denied Ms. Evans’s motion to amend and dismissed her case. On appeal, the 11th Circuit found that the trial court had erred in refusing to allow Ms. Evans to amend her Complaint to add gender nonconformity claims and vacated that portion of the lower court’s ruling.
Crucially though, the 11th Circuit found that Title VII does not prohibit discrimination on the basis of sexual orientation, and upheld that part of the lower court’s ruling. The Court cited to the 1979 Blum v. Gulf Oil Corp. case from the 5th Circuit Court of Appeals. In doing so, the 11th Circuit referred to that case as “binding precedent” for the proposition that a plaintiff cannot state a case for discrimination on the basis of sexual orientation under Title VII. The Court rejected the argument that the Supreme Court’s recognition of gender nonconformity claims under Title VII amounted to recognition of a claim for sexual orientation discrimination. In deciding that Title VII did not allow for such a cause of action, the 11th Circuit adopted the more traditional, and formerly universal, position among U.S. Appellate Circuits. Why, then, is this an issue?
Title VII’s prohibition against discrimination “because of sex” has been held to protect individuals from discrimination and harassment on the basis of gender. In 2015, however, the Equal Employment Opportunity Commission (EEOC), the agency tasked with enforcing federal discrimination law including Title VII, adopted the position that discrimination on the basis of sexual orientation is prohibited by Title VII’s prohibition on discrimination “because of sex.” The EEOC reasoned that any discrimination on the basis of sex necessarily required consideration of sex and of traditional gender stereotypes.
Since then, the EEOC has used its powers to investigate and prosecute employers for alleged discrimination on the basis of sexual orientation. In addition to suing on behalf of employees, it has filed amicus, or “friends of the court,” briefs in private lawsuits, supporting the position that Title VII should be interpreted to prohibit sexual orientation discrimination. Earlier this year that position achieved one of its major goals when the 7th Circuit became the first U.S. appellate court to find that discrimination on the basis of sexual orientation was prohibited by Title VII.
The 7th Circuit, based in Chicago, in ruling on the case of Hively v. Ivy Tech, found that sexual orientation was protected under Title VII and, therefore, could form the basis of a sexual discrimination claim under federal law. At oral arguments in late 2016, the Court showed skepticism that Title VII would support a case based on sexual stereotyping but not one based upon sexual orientation. Then, on April 4, 2017 the 7th Circuit held, by a decision of 8-3, that Title VII prohibited discrimination on the basis of sexual orientation. The majority opinion stated that it is impossible to discriminate on the basis of sexual orientation without discriminating “because of sex.” The Court also referred to the United States Supreme Court’s same-sex marriage decision in Obergefell v. Hodges, et al., as standing for the proposition that the equal protection clause of the U.S. Constitution requires equal treatment regardless of sexual orientation.
As a result, two different U.S. Appellate Courts have considered this question in the past year and come to two different results. Meanwhile, the 2nd Circuit Court of Appeals also has been considering this issue. That Court, sitting en banc in New York City, heard the case of Zarda v. Altitude Express. The plaintiff in Zarda is a gay man who claims to have been terminated from his position as a skydiving instructor because of his sexual orientation and gender nonconformity. His case was heard by a three judge panel of the 2nd Circuit in April of 2017, who ruled that he could not state a claim for sexual orientation discrimination under Title VII. As with the 7th Circuit in Hively, this decision was followed by the entire Circuit agreeing to rehear the case en banc. One interesting aspect in Zarda, which was argued in September, is that the EEOC argued for the inclusion of sexual orientation under Title VII, while another federal agency, the Department of Justice, argued against sexual orientation discrimination under Title VII. Thus, the U.S. government was pitted against each other, with the agency tasked with enforcing discrimination law arguing against the agency responsible for the enforcement of law and the administration of justice. At oral arguments, Justice Rosemary Pooler noted “it’s a little bit awkward for us to have the federal government on both sides of this case.” The 2nd Circuit has yet to issue its decision in the Zarda case.
In fact, the 2nd Circuit may well have thought that any decision they made would be rendered moot if the U.S. Supreme Court accepted the Evans case, but of course now the high court has declined to do so. The Court does not explain why it declines a case; it simply does not accept the case. It could be that the Court does not wish to resolve this issue at this time. It could also be that there is something about the Evans case that the Justices found to be less than ideal, choosing instead to wait for a case they feel is better-suited to resolving this issue. If that is so, they may soon have another opportunity, as whoever loses in the Zarda case will likely appeal to the Supreme Court. Would the Court then choose to hear that case? Or would it again decline to do so? The answer to that question may depend upon whether the Second Circuit rules as the Seventh Circuit did, thus deepening the divide between the Circuits and the traditional interpretation, or as the Eleventh Circuit did, thus making the Seventh Circuit an outlier.
Regardless, the Court’s decision not to hear the Evans appeal means that employers receive no clarification on the current uncertain state of discrimination law regarding sexual orientation. When even Appellate Circuits and federal agencies are at odds over an issue, it can only create massive confusion and uncertainty for the public.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including discrimination law, for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.