On July 6, 2017, the Eleventh Circuit Court of Appeals became the latest circuit to weigh in on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination based on sexual orientation. The court had previously issued a ruling in Evans v. Georgia Regional Hosp, et. al., which held that Title VII did not protect employees from sexual orientation discrimination. The plaintiff petitioned the court for a rehearing; her petition was denied on July 6. Denying the request for a rehearing renders the earlier decision binding, so the Eleventh Circuit interprets Title VII to not protect employees from sexual orientation discrimination. The denial for a rehearing also inches the issue closer to Supreme Court review.
Title VII is the federal employment discrimination statute that protects employees from discrimination at work on the bases of “race, color, religion, sex or national origin.” It is well-settled that Title VII protects employees from two types of “sex” discrimination: gender discrimination (men and women cannot be treated differently) and discrimination for not conforming to your gender stereotype (a man cannot be treated differently for not “acting like a man”). But a circuit split exists on whether the prohibition of “sex discrimination” under Title VII includes a prohibition of sexual orientation discrimination.
Of the federal appellate courts that have considered this issue, only one found that Title VII’s protections from discrimination on the basis of sex includes sexual orientation. This was the Seventh Circuit’s recent en banc decision in Hively v. Ivy Tech College, No. 15-1720 (7th Cir. 2017), which reversed prior Seventh Circuit holding the opposite. The Second Circuit also recently agreed to an en banc rehearing of a case with this issue in Zarda v. Altitude Express, Inc, No. 15-3775 (2nd Cir. 2017), indicating that the circuit split is still evolving.
In Evans, the recent Eleventh Circuit case, the plaintiff was a lesbian who worked as a security guard at the Georgia Regional Hospital from August 1, 2012 until October 11, 2013, when she voluntarily left the job. She later filed a pro se complaint alleging discrimination on the basis of her gender non-conformity and her sexual orientation. The district court characterized both claims as different ways to claim discrimination based on sexual orientation, then dismissed them because of binding precedent that held that Title VII does not protect employees from sexual orientation discrimination.
On appeal, the Eleventh Circuit held that Evans’ non-conformity claim was actionable but was not adequately pled. The court remanded with instructions giving Evans leave to amend her complaint to state an actionable claim.
But it is the Eleventh Circuit’s ruling on Evans’ sexual orientation claim that is notable. The Court cited the Fifth Circuit’s decision in Blum v. Gulf Oil Corp. (which is binding on the Eleventh Circuit), and held that this “binding precedent foreclose[d]” Evans’ sexual orientation action. 597 F.2d 936 (5th Cir. 1979). The court also cited to numerous other decisions holding that Title VII does not protect against discrimination on the basis of sexual orientation, including decisions in the First Circuit, Second Circuit, Third Circuit, Fourth Circuit, Sixth Circuit, Seventh Circuit (which had been reversed by the Hively decision), Eighth Circuit, Ninth Circuit, and Tenth Circuit.
Following the Supreme Court’s decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which legalized gay marriage in the United States, many individuals have criticized the fact that the current protections mean one could marry a same-sex partner on a weekend -- and be fired for that marriage the next Monday. This discrepancy has led to more plaintiffs seeking protection from workplace sexual orientation discrimination under Title VII, and the evolving circuit split means the issue is far from decided.
Until it is decided, employers need to be aware that the protection that Title VII offers to employees depends on different circuits’ interpretation of Title VII. Post-Hively, employees in the Seventh Circuit (Indiana, Wisconsin, and Illinois) currently have a basis to sue for sexual orientation discrimination under Title VII. Even in other circuits, employers should be aware that employees may increasingly try to bring this type of lawsuit.
With the recent decisions in the Eleventh and Seventh Circuits, this issue is now prime for review by the Supreme Court, which often takes on cases to settle circuit splits on interpretation of federal statutes. The Court could potentially decide to take up the issue as soon as October 2017. Its decision would establish the uniform interpretation of Title VII’s sexual orientation discrimination clause.