Two recent court decisions highlight the ongoing struggle by federal courts to determine whether Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation.

Hively v. Ivy Tech Community College

As we previously reported, over the summer the Seventh Circuit held in Hively v. Ivy Tech Community College, 830 F.3d 698 (7th Cir. 2016), that until a Supreme Court opinion or new legislation broadens the protection of Title VII, it is forced to hold that the statute does not prohibit sexual orientation discrimination. The three-judge panel that issued the decision, however, spent a substantial portion of the opinion questioning whether this holding was still good law or should be reconsidered in light of changing societal views and the Supreme Court’s ruling in Obergefell v. Hodges, which recognized that a fundamental right for same-sex couples to marry was protected by the Constitution.

The Seventh Circuit then granted en banc review to Hively, which means the entire court of 11 judges will reconsider the appeal. The oral argument before the full Seventh Circuit was held on November 30. The recording of the oral argument on the Seventh Circuit’s website reflects the judges wrestling with how to interpret a five-decade-old statute, enacted at a time when Congress almost certainly did not intend the prohibition against sex discrimination to extend to discrimination on the basis of sexual orientation, with the plain language of Title VII barring discrimination the basis of “sex.” How, the judges asked the lawyers for both sides, does an adverse employment action against a woman because of her romantic attraction to another woman, as opposed to a man, not constitute discrimination on the basis of sex? As the judges acknowledged, the Supreme Court has never addressed this issue. These and other questions suggest that a majority of the Seventh Circuit may be inclined to reverse its prior precedent and hold that Title VII does prohibit sexual orientation discrimination.

EEOC v. Scott Medical Health Center

A federal district court in Pennsylvania recently held that Title VII does prohibit discrimination on the basis of sexual orientation. In so holding, the district court, which is in the Third Circuit, specifically declined to follow a Third Circuit case from 2001 holding that Title VII did not cover sexual orientation discrimination.

In EEOC v. Scott Medical Health Center, No. 16-225 (W.D. Pa. Nov. 4, 2016), the EEOC brought suit on behalf of Dale Baxley, an employee of the Defendant who alleged he was constructively discharged due to the hostile work environment created by the unceasing and pervasive harassment of his supervisor. Mr. Baxley, who is gay and has a male partner, was routinely subjected to “highly offensive statements” and “harassing comments,” including slurs and inquiries about his sex life.

The court held that discrimination on the basis of sexual orientation is a subset of sexual stereotyping, which under the Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989), is discrimination “because of sex” and therefore impermissible under Title VII.

“Forcing an employee to fit into a gendered expectation—whether that expectation involves physical traits, clothing, mannerisms or sexual attraction—constitutes sex stereotyping and, under Price Waterhouse, violates Title VII,” the court explained.

In arriving at its decision, the court also pointed to the incremental changes that have broadened the scope of Title VII’s protection of sex discrimination in the workplace over time, and in particular called out the Supreme Court’s recent opinion in Obergefell to underscore the “growing recognition of the illegality of discrimination on the basis of sexual orientation.” The court specifically declined to follow a Third Circuit appellate decision from 2001, Bibby v. Philadelphia Coca-Cola Bottling Co., which held that Title VII does not prohibit discrimination based on sex, reasoning that the appellate court in that case did not consider the same arguments and analytical framework advanced by the EEOC in the current case.

What’s Next?

Lower courts are continuing to struggle with this issue, but a trend may be developing in favor of prohibiting sexual orientation under federal law. The pending Seventh Circuit en banc decision in Hively may provide some greater clarity, at least for employers in Illinois, Indiana and Wisconsin. Ultimately, however, this is an issue that will need to be resolved by the Supreme Court or through legislative action. The recent election results make it highly unlikely that Congress or President-elect Trump will amend Title VII to expressly include LBGTQ protections. Also, given President-elect Trump’s intent to appoint conservative judges, the Supreme Court may become less receptive to the further expansion of federal civil rights protections to LBGTQ individuals. Although it remains unclear to what extent sexual orientation is protected under federal law, currently, 23 states, including Illinois, and many municipalities prohibit discrimination based on sexual orientation.

*Grace Urban is currently a second year law student at Loyola University.