Should sexual orientation be protected under Civil Rights Act? There's still no consensus03.12.18
Whether Title VII prohibits discrimination based on sexual orientation remains an ever-changing legal landscape.
In April 2017, the Seventh Circuit Court of Appeals made history when it became the first federal circuit to hold, in Hively v. Ivy Tech Comm. Coll., that sexual orientation falls within the ambit of Title VII’s protections. Writing for the majority, Chief Judge Diane Wood made clear the underlying rationale for placing sexual orientation on the same playing field as other protected classes:
"[A] policy that discriminates on the basis of sexual orientation does not affect every woman or every man, but it is based on assumptions about the proper behavior for someone of a given sex. The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account. Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination if it affects employment in one of the specified ways."
Before the Seventh Circuit’s ruling in Hively, every appellate court facing the same issue had ruled that sexual orientation was not a protected class under Title VII. Indeed, the appeal in Hively stemmed from a petition for the rehearing en banc of an earlier opinion in the case issued by a three-judge panel, which held that sexual orientation discrimination was not cognizable under Title VII.
The Seventh Circuit is no longer alone.
Earlier this week, the Second Circuit Court of Appeals likewise ruled, in Zarda v. Altitude Express, Inc., that sexual orientation qualified as a protected class under Title VII.
In so ruling, the Second Circuit explained that “the most natural reading of [Title VII]’s prohibition on discrimination ‘because of . . . sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation discrimination.” Further, as with sex stereotyping, which has long been recognized as an actionable form of sex discrimination, sexual orientation discrimination is predicated upon assumptions about how persons of a certain sex “should” act. Notably, just like the Seventh Circuit’s decision in Hively, Zarda stemmed from a petition for rehearing en banc of an earlier opinion in the case affirming that sexual orientation discrimination was not prohibited by Title VII.
While Hively and Zarda are representative of the country’s changing attitudes towards sexual orientation discrimination, these decisions still conflict with the majority of federal circuits’ interpretation of Title VII. With the split in authority among the various federal circuits over sexual orientation discrimination growing more and more pronounced, it has become increasingly apparent that the U.S. Supreme Court will one day have to resolve the split once and for all.