The Changing Legal Landscape of Sexual Orientation Discrimination Under Title VII? By Rebecca D. Bullard Sexual orientation is not listed as a protected characteristic under Title VII of the Civil Rights Act of 1964, but some argue – and several federal district courts have held – the statute’s prohibition against discrimination based on sex encompasses sexual orientation. In recent months, the Second, Seventh, and Eleventh Circuit Courts of Appeals have joined in this evolving debate. The Tenth Circuit has not yet addressed the issue since same-sex marriage was legalized nationwide in 2015. Of the recent appellate decisions, only the Seventh Circuit found that discrimination based on sexual orientation is a form of sex-based discrimination prohibited under Title VII. In Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), an openly gay professor alleged that her former employer failed to promote (and eventually terminated) her because of her sexual orientation. In a divided decision, the Seventh Circuit overruled prior case precedent and reversed dismissal of Hively’s claims, concluding “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Slip Op. at 22. Hively alleged that she would have been treated differently if she had been a man married to a woman, which the court described as “paradigmatic sex discrimination” – she was disadvantaged because she was a woman. Slip Op. at 11. “Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” Slip Op. at 14. According to the court, because our society “views heterosexuality as the norm and other forms of sexuality as exceptional,” Hively (as a homosexual) thus represents “the ultimate case of failure to conform to the female stereotype.” Slip Op. at 12.
24 Tulsa Lawyer
In rendering its decision, the Seventh Circuit focused on the changing landscape of the law and was not dissuaded by the fact Congress likely did not envisage sexual orientation as within the scope of Title VII when it was enacted, explaining that it must consider the law as it currently stands, “not what someone thought it meant one, ten, or twenty years ago,” and noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Slip Op. at 9, 21. In so doing, the court acknowledged it was not adding a new protected category to Title VII’s existing list, but rather interpreting discrimination on the basis of sexual orientation as “a subset of actions taken on the basis of sex.” Slip Op. at 6. In other words, sexual orientation is not a protected classification in and of itself, but falls under the umbrella of Title VII’s prohibition against sex discrimination. The Eleventh Circuit reached the opposite conclusion in Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017), holding that Title VII’s protection against sex discrimination does not encompass sexual orientation. Evans, a former hospital security officer, was gay. Though she did not broadcast her sexuality, it was “evident” she identified with the male gender based on her uniform, haircut, and shoes. Slip Op. at 3. Evans claimed she was discriminated against because of her sexual orientation and targeted for harassment for failing to carry herself in a “traditional woman[ly] manner.” Slip Op. at 3. In ruling that sexual orientation was not an actionable basis for Evans’ discrimination claims, the court explained it was bound by prior case law holding that “discharge for homosexuality is not prohibited by Title VII.” Slip Op. at 12. But the Eleventh Circuit’s decision emphasized that a gender non-conformity claim was a separate avenue for relief – actionable under Title VII’s protection against discrimination