Analysis Law and Policy

Second Circuit Signals It May Expand Title VII to Include Sexual Orientation Discrimination

Imani Gandy

For years, federal courts have refused to expand Title VII’s prohibition on sex discrimination to include sexual orientation, instead relying on discrimination on the basis of gender stereotyping to sometimes rule in favor of LGBTQ plaintiffs.

Last month, in a stunning victory for the LGBTQ community, the U.S. Court of Appeals for the Seventh Circuit became the first federal court to say that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation. Now, the Second Circuit may be following suit.

Hively v. Ivy Tech involved a lesbian named Kimberly Hively, who alleges that her employer, Ivy Tech Community College of Indiana, discriminated against her after she was reprimanded for kissing her girlfriend in the parking lot of the school. In 2014, she filed a lawsuit alleging a violation of Title VII , but Ivy Tech pointed out that no federal circuit had interpreted the law to forbid anti-sexual orientation discrimination. The trial court dismissed the case on that basis. A three-judge panel of the Seventh Circuit affirmed the trial court’s decision. But in April, the Seventh Circuit, sitting en banc—or with all the judges present—reheard the case. It decided in Hively’s favor: Title VII precludes discrimination on the basis of sexual orientation.

The Second Circuit is now poised to do the same with Zarda v. Altitude Express. According to the suit, Donald Zarda, a skydiver from New York, would often inform female clients that he was gay—especially when the women were accompanied by a boyfriend or husband—in order to make them feel more comfortable about being strapped close together for tandem sky-diving. When one female client told her husband what had happened, her husband complained about Zarda’s behavior to Altitude Express. Shortly thereafter, Zarda was fired. Zarda alleges that he was fired due to his sexual orientation. The district court tossed his case out of court, relying on Second Circuit precedent—Simonton v. Runyonthat Title VII did not reach sexual orientation discrimination.

Zarda believes that Simonton should be overturned; he argued as much on appeal to a three-judge panel of the Second Circuit. But the panel declined, noting that in order to overturn settled precedent, the entire Second Circuit would need to be involved in the decision-making process. Late in May, the court announced that’s exactly what it’s going to do.

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One of the judges requested a poll on whether to rehear the case en banc, and a majority of the judges on the Second Circuit voted yes. The Second Circuit asked the parties to file briefs answering the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of  … sex’?”  The Court also invited amicus briefs from interested parties.

Retaking the case is a big deal.

For years, federal courts have refused to expand Title VII’s prohibition on sex discrimination to include sexual orientation, instead relying on discrimination on the basis of gender stereotyping to sometimes rule in favor of LGBTQ plaintiffs.

The Supreme Court ruled that Title VII covers the latter in the landmark case Price Waterhouse v. Hopkins.

In Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. The U.S. Supreme Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.

The Court’s ruling in Hopkins paved the way for some plaintiffs who allege gender stereotyping to pursue litigation, but it left those who may not have been targeted for gender stereotyping, but were targeted because of their sexual orientation, in a legal vacuum.

In Christiansen v. Omnicom Group, Inc., for examplea case I wrote about here—the Second Circuit somewhat regretfully dismissed Matthew Christiansen’s sexual orientation discrimination claims under Title VII, again citing Simonton. Still, it allowed him to proceed on a theory of gender stereotyping since he had alleged multiple instances of gender stereotyping behavior from his employer. The case is still being litigated.

For its part, the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII, has remained firm: The EEOC has repeatedly said that, in its view, Title VII encompasses sexual orientation discrimination. In 2015’s Baldwin v. Department of Transportation, the EEOC wrote an agency decision letter taking the position that discrimination on the basis of sexual orientation qualifies as discrimination “because of sex,” given that allegations of sexual orientation discrimination necessarily involve sex-based considerations.

But since EEOC precedent is not binding on any court, federal appeals courts have continued to dismiss lawsuits brought by plaintiffs claiming sexual orientation discrimination while permitting plaintiffs like Matthew Christiansen who allege discrimination on the basis of gender stereotyping to proceed with their lawsuits.

Indeed, in March of this year, in Evans v. Georgia Regional Hospital, a three-judge panel of the 11th Circuit, bound by precedent, ruled that Title VII did not reach sexual orientation discrimination. In that case, Circuit Judge Robin Rosenbaum penned a strong dissent, arguing that plaintiff Jameka Evans should have been permitted to pursue her sexual orientation discrimination claim because when a woman alleges “she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only.” Rosenbaum also argued that just because Title VII wasn’t designed to protect gay people, that doesn’t mean the statute shouldn’t now be read to protect them.

Jameka Evans has recently requested that the 11th Circuit rehear her case en banc, which would allow the court to overturn precedent.

So the current legal landscape is murky: In Indiana, Wisconsin, and Illinois, the states encompassed by the Seventh Circuit, LGBTQ employees can sue under Title VII alleging sexual orientation discrimination. The Second Circuit, both in its decision in Christiansen and its decision to rehear Zarda en banc, has signaled heavily that it intends to follow in the Seventh Circuit’s footsteps. If it does, that means citizens who live in New York, Connecticut, and Vermont will also be able to sue for sexual orientation discrimination under Title VII.

What the 11th Circuit will do is a bit more up in the air; Mark Joseph Stern at Slate argues, though, that because the court leans liberal, it’s likely that the 11th Circuit will rule that Title VII encompasses sexual orientation discrimination.

If either the Second Circuit or 11th Circuit declines to follow the Seventh Circuit’s reasoning, the Supreme Court will likely be called upon to resolve the matter. Because the Supreme Court abhors a circuit split—that is, different law applying to different parts of the country—with any luck, it will resolve this issue once and for all and rule that Title VII bars employment discrimination on the basis of sexual orientation.

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