In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit Court of Appeals issued an en bancopinion in which it reversed prior circuit precedent and found that discrimination on the basis of sexual orientation in employment is prohibited by Title VII. A circuit court appeal is usually decided by a three-judge panel; however, it may choose to hear the case en banc, in which case the appeal is before all judges of the appellate court. When a case is heard en banc the court may overturn prior circuit precedent and the opinion carries greater persuasive authority outside of the circuit.
Writing for the majority, Chief Judge Diane Wood found that sexual orientation discrimination was discrimination “on the basis of … sex” under two common theories:
The first is “the comparative method” in which the court considers what relation the employee’s sex has to the employer’s decision. In assessing the discriminatory nature of a policy, the court holds all things constant except the employee’s sex and determines if the adverse employment action or policies would have applied but for the employee’s sex. This approach is much like that used by the Supreme Court in Loving v. Virginia to find that miscegenation statutes discriminated on the basis of race. Here, holding all things equal (including the female sex of the employee’s spouse) but changing the employee’s sex to male, the court noted that such adverse employment action would not have happened but for the employee’s female sex. Accordingly, the court found that sexual orientation discrimination is sex discrimination under Title VII.
The second theory is under the Supreme Court’s decision in Price Waterhouse v. Hopkins and its progeny, in which courts have developed a theory prohibiting discrimination on the basis of an employee’s nonconformance with gender stereotypes. This theory has been used by courts (including the Sixth Circuit) to find that discrimination on the basis of transgender status is prohibited by Title VII. However, many circuits have found that sexual orientation discrimination is distinct and excluded from Title VII protection. The Seventh Circuit majority noted that discrimination against a gay or bisexual employee fits squarely within the gender stereotype theory of sex discrimination as such employees do not comply “with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.” Id. at 5.
Under both theories, the court found that sexual orientation discrimination was discrimination “on the basis of … sex” for purposes of Title VII. Notable conservative judges Richard Posner and Frank Easterbrook filed separate concurring opinions. This decision will likely have persuasive authority in future cases outside of the Seventh Circuit and may lead the Supreme Court to weigh in on the current split in Title VII interpretation.
One recent example of the other side of this circuit split is the Eleventh Circuit’s opinion in Evans v. Ga. Reg’l Hosp., No. 15-15234, 2017 U.S. App. LEXIS 4301 (11th Cir. Mar. 10, 2017). Evans involved a security guard employed by the Georgia Regional Hospital in Savannah who alleged that she was subjected to a hostile work environment because of her sexual orientation and nonconformance with stereotypically feminine gender expression. A majority of the Eleventh Circuit’s three-judge panel found that her claims based on sexual orientation discrimination under Title VII were foreclosed by a 28-year-old decision of its predecessor circuit, which could only be overturned by a decision of the full Eleventh Circuit sitting en banc or a decision of the U.S. Supreme Court directly contradicting the prior case. However, the majority remanded the decision and provided that the employee could amend her complaint (now with the aid of legal counsel) to bring a claim for sex stereotype discrimination pertaining to gender expression apart from her sexual orientation, i.e., her decision to wear a men’s uniform and otherwise present herself in a masculine manner. Judge Robin Rosenbaum wrote a lengthy and vigorous dissent in which she argued that the prior decision relied upon by the majority was no longer binding precedent. Judge Rosenbaum also encouraged the employee to petition the court for rehearing en banc.
Ohio, as part of the Sixth Circuit, has binding precedent excluding sexual orientation discrimination from the protections of Title VII. Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). However, cases like that described above are being filed in federal courts across the country. Employers should be mindful of potential litigation, if not liability, that may arise from an adverse employment decision on the basis of an employee’s sexual orientation.
Feel free to contact FHKAD Attorney H. Devon Collins at firstname.lastname@example.org with any questions.