Supreme Court Likely to Resolve Conflict As to Sexual Orientation Bias

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “sex.”  In the past 30 days, three federal appellate courts have addressed the question of whether discrimination on the basis of sexual orientation can be actionable under Title VII as a form of “sex” discrimination.

On March 10, 2017, a panel of the Eleventh Circuit in Evans v. Georgia Regional Hosp. found  (by a 2-1 vote) that it could not recognize sexual orientation claims under Title VII.  In doing so, the panel opined that it was bound by the 1979 Fifth Circuit decision in Blum v. Gulf Oil Co., which had held “[d]ischarge for homosexuality is not prohibited by Title VII.”

On March 24, 2017, a panel of the Second Circuit in Christiansen v. Omnicom Group, Inc. declined to hold that Title VII bans discrimination on the basis of sexual orientation.  Similar to the Eleventh Circuit, the panel observed that it lacked the power to reconsider an earlier Second Circuit decision holding that sexual orientation claims are not cognizable under Title VII.  Two of the three judges, however, argued in concurring opinions that the Second Circuit ought to reconsider its earlier precedent.

On April 4, 2017, in an en banc decision, the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination” outlawed by Title VII.  Three justices dissented reasoning that “[s]exual orientation is not on the list of forbidden categories of employment discrimination” set forth in Title VII.

So what does it mean for employers that there are seemingly inconsistent appellate opinions as to whether sexual orientation discrimination is prohibited by Title VII?  First, it means that the issue is likely headed to the Supreme Court.  A conflict of opinion amongst lower appellate courts is one basis for the Court to agree to hear a case.

Second, it means that employers can no longer assume that sexual orientation claims under Title VII will be dismissed.  Indeed, many federal courts have already held that gay plaintiffs may be able to survive dismissal under Title VII by couching their claims as gender stereotyping.  In Christensen, therefore, the Second Circuit found that an openly gay male plaintiff pleaded a claim of gender stereotyping under Title VII that was sufficient to survive dismissal.

Finally, it means that employers should be reviewing their personnel policies and training programs to make sure that sexual orientation discrimination is addressed. The alternative could be costly and protracted litigation even if the Supreme Court ultimately and finally decides that discrimination based upon sexual orientation is not a form of “sex” discrimination outlawed under Title VII.

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