For several years the U.S. Equal Employment Opportunity Commission (EEOC) has been advocating the position that discrimination based on sexual orientation amounts to unlawful sex discrimination.
Last year, for the first time, the EEOC actually ruled in a case, Baldwin v. Foxx, that discrimination based on sexual orientation is necessarily sex discrimination under Title VII. The EEOC argued that sexual orientation discrimination necessarily involves sex discrimination because (1) it always involves consideration of sex, (2) it is associational discrimination because it discriminates based on the gender of who the employee dates or marries, and (3) it is a form of stereotyping based on gender norms, which the Supreme Court has ruled is unlawful sex discrimination. Although each of the EEOC’s arguments has appeal, the decision has not been universally accepted for the simple reason that sexual orientation is distinct from gender. For example, a manager who discriminates against both male and female homosexuals because of orientation would not seem to be engaging in discrimination based on gender, but on orientation only, so the argument goes.
Now comes the U.S. Court of Appeals of the Seventh Circuit in Hively v. Ivy Tech Community College, decided July 28, which rejected the EEOC position, but noted there is “writing on the wall” that sexual orientation discrimination in employment may not be legal for long, as it is widely regarded as unacceptable today. The opinion is a tour de force, discussing not only the history and evolution, but also the inconsistencies in the law on this hot topic.
The Seventh Circuit opinion highlighted the tremendous progress in recent years in civil rights for the LGBT community, including the U.S. Supreme Court decision in 2015 legalizing gay marriage in all 50 states, and saw “an emerging consensus that sexual orientation discrimination in the workplace can no longer be tolerated.” Nevertheless, the court held that it was bound by precedent in the Seventh Circuit – which matches the precedent in almost all other federal appellate courts – holding that Title VII does not protect against sexual orientation discrimination. As the court noted, Congress has rejected repeated efforts to amend the law to protect employees based on sexual orientation.
The Hively court also pointed out the absurdity of court decisions on the topic, especially with regard to sex stereotyping, leaving “a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms – wearing pants instead of dresses, having short hair, not wearing make-up – but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.”
In the meantime, regardless what appellate courts, Congress, and the President do, employees in about half of the country continue to be protected – at varying levels – by state laws against discrimination based on sexual orientation and gender identity. At the federal level, the law protects only employees of federal contractors against such discrimination.
Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.