7th Circuit: Only a Matter of Time Before Sexual Orientation Bias Violates Title VII

October 12, 2016

On July 28, 2016, the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) addressed the issue of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of their sexual orientation. Despite what it described as “harsh criticism” from the Equal Employment Opportunity Commission (EEOC), the court maintained its stance that sexual orientation is not a protected category under Title VII. Nevertheless, the court clearly noted that the writing is on the wall and it expects changes to that interpretation of the law in the future. 

Prior Cases

Back in 2000, the 7th Circuit issued two decisions holding that Title VII offered no protection or remedies for discrimination based on sexual orientation. One of those cases involved a male nurse who was terminated after he filed an internal sexual harassment grievance alleging harassment on the basis of his sexual orientation. The dismissal of the lawsuit was affirmed by the 7th Circuit on the grounds that the employee failed to show that he had opposed an unlawful employment practice under Title VII.

The second case involved an employee who alleged that Ford Motor Company violated Title VII by subjecting him to hostile environment sexual harassment, retaliating against him for reporting the sexual harassment, and discriminating against him on the basis of his sex. Because the sexual harassment was found to be motivated by the employee’s sexual orientation rather than the fact that he is male, the 7th Circuit affirmed the lower court’s dismissal of that claim.

Since those decisions were issued in 2000, the 7th Circuit has relied on them to hold that Title VII’s prohibition on discrimination based on sex applies only to discrimination because of a person’s gender, not his sexual orientation. Numerous subsequent decisions by the 7th Circuit have dismissed sexual orientation claims based on those earlier decisions. In late July 2016, the 7th Circuit reluctantly affirmed the dismissal of another case on the grounds that sexual orientation is not protected under Title VII.

7th Circuit Revisits Sexual Orientation Discrimination Question

Kimberly Hively, a part-time adjunct professor at a community college in Indiana, alleged that although she was qualified for full-time employment and never received a negative evaluation, she was never even given the opportunity to interview for any of the six full-time positions she applied for over a five-year period. She also complained that her part-time employment contract with the community college wasn’t renewed. She claimed that she was denied full-time employment and promotions because of her sexual orientation.

In revisiting the issue of whether sexual orientation discrimination is discrimination on the basis of “sex,” the 7th Circuit noted that its holdings are consistent with those of other circuit courts that have decided the issue. The court also pointed out that Congress hasn’t passed legislation that would extend Title VII coverage to sexual orientation, despite several efforts to do so.

In what it described as the EEOC’s “shadow of criticism” that it has continued to reflexively declare that sexual orientation isn’t covered by Title VII without any real analysis, the court undertook an extensive examination of the issue. In doing so, the court noted that in July 2015, the EEOC issued a decision in which it concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The court found that decision significant for a number of reasons, including the fact that EEOC rulings are entitled to some level of deference by the federal courts.

After reaffirming its previous finding that Title VII doesn’t currently prohibit discrimination based on sexual orientation, the court all but stated that would soon be changing. It noted that other federal courts are taking heed of the reasoning behind the recent EEOC decision. The court pointed out that more and more district court judges have “begun to scratch their heads” in considering whether the distinction between claims based on sexual orientation and claims based on sex really make sense. Because of recent legal developments

and changing workplace norms, the court felt that a fresh look at the issue of sexual orientation discrimination under Title VII is required.

Citing Price Waterhouse v. Hopkins, the court pointed out that as far back as 1989, the U.S. Supreme Court declared that Title VII protects employees who fail to comply with typical gender stereotypes. As a result of the Price Waterhouse decision, courts began to recognize claims from gay, lesbian, bisexual, and transgender employees who framed their Title VII sex discrimination claims in terms of discrimination based on “gender nonconformity” rather than sexual orientation. The court noted that those claims tend to be successful only if the employee can carefully distinguish the gender nonconformity discrimination from the sexual orientation discrimination. The court described that distinction as “elusive.”

The 7th Circuit noted that since Price Waterhouse came down, courts have been haphazardly, and with limited success, trying to figure out how to draw the line between gender norm discrimination, which is prohibited by Title VII, and sexual orientation discrimination, which is not. The court acknowledged that it is exceptionally difficult to distinguish between these two types of claims because almost all sexual orientation discrimination claims can be traced back to some form of discrimination based on gender nonconformity.

While disentangling gender discrimination from sexual orientation discrimination may be difficult, the court could not conclude that it’s impossible. It seems likely that most discrimination based on sexual orientation stems from employer and coworker discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, but the court couldn’t say that must be true in all cases. Therefore, the court couldn’t conclude that the two must necessarily be coextensive unless or until Congress or the Supreme Court says so.

As a result, the court feels compelled to continue to try to extricate gender nonconformity claims from sexual orientation claims. Nonetheless, it recognized the uncomfortable result in which the more visibly and stereotypically “gay” or “lesbian” an employee is in terms of mannerisms, appearance, or behavior, the more likely a court will be to recognize a claim of gender nonconformity covered under Title VII as sex discrimination. On the other hand, employees who don’t look, act, or appear to be gender nonconforming but are merely known to be or perceived to be gay or lesbian don’t fare as well and typically lose their Title VII sex discrimination claims. According to the court, that’s why this issue isn’t entirely clear.

The Writing is on the Wall

The court described the paradox in which a person can be married on Saturday and then fired on Monday for that same act. That’s because federal law now guarantees anyone the right to marry another person of the same gender, but Title VII allows employers to fire employees for doing so.

Seemingly exasperated, the court noted that its task is to interpret Title VII as drafted by Congress. It noted that if it and every other circuit court that has considered the issue are wrong about their interpretation of whether Title VII applies to sexual orientation discrimination, perhaps it’s time for the Supreme Court to step in and tell them so. The court noted that we are currently left with a body of law that values the wearing of pants and earrings more than it values marriage. The court remarked that it seems likely that neither proponents nor opponents of protecting employees from sexual orientation discrimination will be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians, but not gay or lesbian employees who act and appear straight.

Essentially, the court concluded that its hands were tied. It needs a compelling reason to overturn its own precedent holding that Title VII provides neither protection from nor redress for discrimination on the basis of sexual orientation. Ordinarily, that would require a decision from the Supreme Court or a change in the law initiated by Congress. The court did observe that precedent can be overturned when the rule is proven to be intolerable simply because it defies practical workability. In time, these inconsistencies may come to that point and lead the court to reconsider its precedent.

In its conclusion, the court observed that perhaps the writing is on the wall. It suggested that it’s unlikely that society could continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely because of whom they date or marry. The court acknowledged that the agency tasked with enforcing Title VII doesn’t condone such discrimination, many of the federal courts do not condone it, and the 7th Circuit does not condone it.

In expressing what appears to be its frustration with the situation, the court stated that the “writing on the wall” is not sufficient. Until that writing comes in the form of either a Supreme Court opinion or new legislation, the court must adhere to the writing of its past precedent. Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir., July 28, 2016).

Bottom Line

The 7th Circuit is clearly troubled by the current state of the law with regard to the application of Title VII to discrimination based on sexual orientation. However, the court recognizes that it and other circuit courts of appeal are currently hamstrung by their own precedent. This opinion is a strong plea by the court for Title VII to be amended to provide coverage for sexual orientation discrimination or for the Supreme Court to take up the issue and decide it once and for all.

This article, slightly modified to note recent updates, was featured in the September 2016 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "7th Circuit: Only a Matter of Time Before Sexual Orientation Bias Violates Title VII," contact Michael J. Westcott at mwestcott@axley.com or 608.283.6722.