Circuit Split Has Developed Over Whether Sexual Orientation Is a Protected Characteristic Under Title VII

On April 4, Seventh Circuit Held in Hively v. Ivy Tech Community College of Indiana That Sexual Orientation Discrimination Is Prohibited Under Title VII; On March 27, in Christiansen v. Omnicom Group, Inc., Second Circuit Affirmed Contrary View, in Line With All Other Circuits to Consider the Question April 19, 2017
In a landmark decision, the Seventh Circuit, sitting en banc and in an 8-to-3 decision, overturned its own precedent to hold that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation.  Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017).

Until this decision, federal appellate courts had uniformly held that Title VII’s prohibition of discrimination on the basis of sex does not prohibit discrimination on the basis of sexual orientation.  (The EEOC, however, has taken the position that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.)  As a result, courts have struggled with the question of whether allegations of discrimination or harassment brought on the basis of sexual orientation could be actionable under the rubric of gender stereotyping, cognizable under Title VII.

The Hively majority wrote that “the common sense reality [is] that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” and that “the time has come to overrule our previous cases that have endeavored to find and observe that line.”  The decision reversed and remanded the lower court’s dismissal of the plaintiff’s Title VII claim that she was discriminated against with respect to promotion decisions because she was a lesbian.

The week before the Hively decision, the Second Circuit reaffirmed its previous rulings that Title VII does not cover claims of sexual orientation discrimination.  Christiansen v. Omnicom Group, Inc., No. 16-748 (2d Cir. Mar. 27, 2017).  The three-judge panel noted that it was bound by the Circuit’s precedent, which it would not overrule unless the court determined to do so in an en banc decision.  The panel nonetheless permitted the plaintiff, a gay man, to pursue a Title VII claim on the basis of gender stereotyping.  Significantly, in his concurring opinion, Chief Judge Katzmann called for the Second Circuit to “revisit” its decision “in the context of an appropriate case.”  He also remarked that “it well may be that the Supreme Court will ultimately address” the question of discrimination on the basis of sexual orientation.

The facts in the Christiansen case highlight the issue presented by Title VII sexual orientation claims.  The plaintiff, an HIV-positive, openly gay man, alleged that his supervisor at Omnicom Group harassed him by targeting his “effeminacy and sexual orientation,” including by drawing pictures depicting Christiansen in tights and a low-cut shirt “prancing around,” circulating a poster with Christiansen’s head attached to a bikini-clad female body, and telling other employees that Christiansen “was effeminate and gay so he must have AID[S].”  Christiansen’s Title VII claim alleged that he was discriminated against due to his HIV-positive status and failure to conform to gender stereotypes.

More circuit court decisions on this question may be on the horizon.  On March 31, 2017, a plaintiff who had unsuccessfully alleged that she was fired because she is gay moved for a rehearing of her claims by a full panel of the Eleventh Circuit.  Evans v. Ga. Reg’l Hosp., No. 15-15234 (11th Cir. Mar. 10, 2017).

The above decisions deal only with federal anti-discrimination protections under Title VII.  A variety of states and local governments have expressly barred sexual orientation discrimination under their anti-discrimination laws.  In New York, for example, the New York City and New York State Human Rights Laws prohibit discrimination on the basis of sexual orientation.

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