Earlier this month I moderated a panel discussion on employment law and the LGBTQ community at the LGBT Bar Association’s annual Lavender Law Conference. Much has changed since my first Lavender Law Conference in 1988. Back then, the law was clear: Title VII did not provide protection against discrimination based on sexual orientation or gender identity. Period.
In the last ten years, many courts have found that gays and trans employees may have viable sex discrimination claims to the extent that they are able to demonstrate that they are being discriminated against because they do not conform to sexual stereotypes. But what about the “straight acting” gay employee? Does that employee have a claim under Title VII if he is discriminated against simply because he (or she) is attracted to partners of the same gender?
Until recently, most folks agreed that Title VII did not protect gay or lesbian employees who otherwise conformed to gender stereotypes. We now, however, have a clear circuit split on this issue between the Seventh Circuit — which held in Hively v. Ivy Tech Community College of Indiana that gays are protected by Title VII — and the Eleventh Circuit, which held in Evans v. Georgia Regional Hospital, that they are not. Lambda Legal has already announced that it intends to file a petition for certiorari to the Supreme Court in Evans.
So what are the arguments for expanding the definition of sex in Title VII to include sexual orientation? The first argument is that an employee’s sex is a “but-for” cause of any discrimination based upon that employee’s sexual orientation. Put simply, if gays and lesbians were of a different sex, their choice of partners would be entirely unobjectionable. For example, an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.
The second argument, and perhaps most controversial, is that sexual-orientation discrimination represents an “associational” discrimination; that is, gay men and women are discriminated against because of their associations with people of the same gender. The foundation of this argument can be found in interracial marriage cases, starting obviously with Loving v. Virginia where the Supreme Court struck down state laws preventing interracial marriage.
The final argument is a “definitional” argument and was raised in Judge Posner’s concurring opinion in Hively. Posner argues that a “broader understanding” of the word “sex” than what was originally understood is appropriate and points out that statutory provisions “frequently are interpreted on the basis of present need and understanding rather than original meaning.”
Most of the members of the panel I moderated agreed that, if certiorari is granted, Justice Kennedy is likely to be the deciding vote. The panelists expressed hope that Justice Kennedy will author another pro-LGBT opinion, as he did in striking down the Texas sodomy statute and in finding that same sex partners have a right to marry. On the other hand, this is a case involving statutory — as opposed to constitutional — interpretation, and Justice Kennedy may believe that this is a matter for Congress to decide.