Courts Split On LGBTQ Questions, Leaving In-House Counsel Flummoxed

The federal courts are confused over discrimination law. In-house counsel should stay above that fray.

The Supreme Court generates a lot of legal nerd buzz, what with the daily assault on civil rights and the barely veiled dissension among the ranks, but when it comes to the cases that in-house counsel need to be concerned about, the action isn’t always at the high court — though it will likely end up there — and may be happening right now at your local circuit courthouse. At the Association of Corporate Counsel annual meeting, the panel “Hot Cases in the US Supreme Court and Federal Courts,” tackled all the thorny legal disputes in the federal system that threaten tremendous consequences for businesses.

And few questions loom larger over businesses than how they interact with the LGBTQ community and few questions can frustrate in-house counsel more than confusion amongst the circuits over a company’s legal obligations.

Look, it’s unlikely that IBM is going to claim that its custom computer installs are an “art form” allowing them to discriminate against people based on archaic prejudices, but no discussion of the Supreme Court and business would be complete without a diversion into Masterpiece Cakeshop and its effort to be the most constitutionally despicable bakers since Lochner’s Home Bakery. David Rivkin of BakerHostetler places this case, as one would expect, directly on Justice Kennedy — a justice proud of his reputation for protecting commercial speech and his potential legacy as the justice who drove civil rights for the LGBTQ community. Rivkin predicts the bakers will prevail, citing Kennedy’s meandering Obergefell opinion and its defensive references to differences of opinion. Maybe Justice Kennedy wants to kneecap his own legacy now, rather than wait until retiring under this administration?

The Masterpiece discussion provides an appropriate bridge to the presentation from Professor Diane Juffras of the University of North Carolina School of Government on the critical Title VII cases working their way through the courts.

In Hively v. Ivy Tech Community College, a part-time academic applied for full-time and was denied, subsequently losing her part-time job. She argued that this was because of her sexual orientation. A Seventh Circuit panel determined that prior precedent held that Title VII did not cover discrimination based on sexual orientation. This was overturned in an epic en banc opinion. The Seventh Circuit recognized that the majority of circuits do not hold that Title VII covers sexual orientation discrimination, but noted that the interpretation of “sex” had expanded over the years, starting with PwC v. Hopkins in 1989 expanding coverage into sexual stereotyping.

The Seventh Circuit reasoned that, if the facts changed the sex of the plaintiff, would there still be discrimination? No, because a man who was attracted to women wouldn’t be subject to the sexual stereotyping of an employer that Hively’s orientation didn’t match the employer’s conception of what a woman should “be like.” It certainly seems problematic to suggest that the rights of a lesbian woman should be contingent on how she deviates from a “normalized” stereotype, but that’s a matter for a dissertation. For now, Hively prevailed.

In Zarda v. Altitude Express, a gay male skydiving instructor doing tandem dives informed a female client that he was gay to make her feel at ease with diving tandem. He was fired when the client raised the issue with the company. He brought the claim based on male stereotyping. This is the Second Circuit case with the curious circumstance of the EEOC and the DOJ filing briefs on opposite sides of the question. The EEOC tracks Hively, while the DOJ tracks the Hively dissent. The panel declined to join the Seventh Circuit.

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I get that this will have ramifications for businesses across the country, but part of me can’t help but think that the best advice remains, “don’t discriminate against people.” If you’re advising a company in drafting their internal policies, go with the most stringent definition of discrimination you can. There’s never going to be harm when you position your employer’s internal policies ahead of the law instead of on its medieval bleeding edge.


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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