Title VII and Sexual Orientation - To Be or Not to Be? That is Still the Question.05.22.17
For most employers, whether or not sexual orientation is technically a "protected class" in the eyes of Title VII of the Civil Rights Act of 1964 is irrelevant to their everyday practices in the workplace because it makes no difference - they simply treat everyone equally. The majority of our clients use language in handbooks, policies and handouts that is purposely inclusive.
Currently, there is no opinion from the U.S. Supreme Court clearly answering whether or not sexual orientation is a "protected class" under Title VII or whether sexual orientation is an extension of "sex," which is a protected class under Title VII. There are of course cases that clearly explain that gender and/or sex-stereotyping based on an employee's "failure" to conform to gender norms is unacceptable and prohibited under Title VII, but nothing that says simply and clearly that one's sexual orientation alone is its own protected category or that discrimination on the basis of sexual orientation classifies as discrimination on the basis of sex.
On April 4, 2017, the Seventh Circuit issued a landmark opinion by becoming the first federal appellate court to extend the protections of Title VII to sexual orientation, placing sexual orientation on the same playing field as race, color, religion, national origin, disability and familial status. While the Seventh Circuit is not the first court to hold that Title VII provides protection for sexual orientation, it is the highest court to do so. In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017), the Seventh Circuit cited "common sense reality" when holding that "a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." The Court emphasized, "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex..."
In Hively, Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College and, as described by the Seventh Circuit, "openly lesbian." Hively applied for six full-time positions, but she did not receive any of them and eventually Ivy Tech did not extend Hively's contract. Hively filed a charge of discrimination with the Equal Employment Opportunity Commission plainly stating she was discriminated against on the basis of her sexual orientation. Throughout litigation, Ivy Tech of course offered as a defense that sexual orientation is not protected by Title VII. On April 4, however, after a long and arduous process, the Seventh Circuit issued its circuit-splitting opinion.
As recently as March 2017, the Eleventh Circuit held that discrimination on the basis of sexual orientation is not prohibited under Title VII. See Jameka Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. March 10, 2017). The First, Second, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and D.C. Circuits have all reached the same or similar conclusion.
Because there is now a clear distinction and split in authority between the federal appellate courts, the U.S. Supreme Court may take up this issue in the near future. Absent legislation by Congress, the courts are left to decipher the meaning and interpretation of Title VII.
Practically, employers should undertake to treat all employees equally without discriminatory animus - whether that be based on a currently protected category or one that is well on its way like sexual orientation. While being a "test" case is sometimes beneficial, the road to get there is usually quite difficult and most often unrewarding. Employers are wise to be proactive and prepare for likely change in the current law if the Supreme Court's recent rulings regarding sexual orientation are any indication of what's to come. See Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (recognizing that the Due Process and Equal Protection Clauses of the Constitution protect the right of same-sex couples to marry).