Labor / Employment, On The Job

What’s Happening With Sexual Orientation Discrimination In The Workplace?

We're stuck with our current jurisprudential patchwork until the Supreme Court decides a workplace discrimination case.

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A frequent question for employment lawyers recently is whether sexual orientation discrimination is prohibited in the workplace. The answer at this point is a firm “maybe,” depending a lot on one’s location. In some states and federal circuits, it’s prohibited. In other states and federal circuits, it isn’t. Until SCOTUS gives us a definitive answer, that’s the best answer we have.

But this leaves many wondering: How did we get to this inconsistent application of the law? Have there been any new developments? And, most importantly, when are we going to get a ruling from the high court on this issue?

How Did We Get Here?

Title VII prohibits discrimination because of someone’s “sex.” Congress provided no legislative history to aid courts in their interpretation of the word. Courts therefore initially applied the word as only outlawing discrimination based on someone’s biological status at birth as a male or female. Courts then slowly began applying a broader definition, which eventually came to include sexual harassment as a form of discrimination because of someone’s “sex.”

In 1989, SCOTUS held in Price Waterhouse, Inc. v. Hopkins that discrimination based on nonconformity with gender norms also constitutes sex discrimination. Almost a decade later, in 1998, SCOTUS again expanded its interpretation of Title VII as prohibiting same-sex sexual harassment in Oncale v. Sundowner Offshore Services, Inc.

Without guidance from Congress or SCOTUS, courts have generally held since Price Waterhouse and Oncale that if alleged discrimination or harassment was based on a belief that the victim was homosexual then there was no Title VII claim. If, however, the discrimination was based on the perception that the victim didn’t conform with gender norms then there was a cause of action under Title VII.

Where Are We Now?

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On April 4, 2017, the Seventh Circuit Court of Appeals held en banc that Title VII prohibits sexual orientation discrimination. This was the first federal appellate court to do so. The court explained that treating people differently because they prefer one sex over the other is the epitome of gender stereotyping, which has been unlawful for many years under the Price Waterhouse decision.

The Seventh Circuit’s decision, however, is contrary to the Eleventh Circuit’s ruling earlier this year in Evans v. Georgia Regional Hospital, in which a split panel held that Title VII does not prohibit sexual orientation discrimination. The court ruled that it was bound by prior Eleventh Circuit precedent. The Evans appellant sought en banc review from the court, but the request was denied. She has petitioned SCOTUS for review of the case. The most recent filing on the SCOTUS docket was the response to her Petition for Writ of Certiorari which was filed last week on November 10.

In another case currently pending in the U.S. Court of Appeals for the Second Circuit, Zarda v. Altitude Express, the appellant (through his estate) contends that his employer fired him because of his sexual orientation. A three-judge Second Circuit panel previously ruled that the appellant had no claim for sex discrimination under Title VII. But, in May of this year, the Second Circuit agreed the review the case en banc.

The Second Circuit then asked the U.S. Equal Employment Opportunity Commission (the federal agency tasked with enforcing Title VII) to file an amicus brief in the case. The EEOC argued that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” Among other reasons, the EEOC’s brief states that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

In a rare turn of events, the U.S. Department of Justice then filed its own amicus brief in direct opposition to the EEOC (even though the Second Circuit had not asked for the DOJ’s input). The DOJ argued that this issue has been “settled for decades” and that Title VII does not prohibit sexual orientation discrimination “as a matter of law.” The DOJ went on to state that the question of whether “sexual orientation discrimination should be prohibited by statute, regulations, or employer actions” is one of “policy” and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” The court heard oral arguments in the case in late September 2017, with the EEOC and DOJ completely at odds.

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When Will SCOTUS Decide This Issue?

Unless you’ve been living under a rock, you’ve heard about the case involving a Colorado cake shop which refused to make a cake for a gay couple in 2012. The case, Masterpiece Cakeshop, Ltd. v. Civil Rights Commission, is now pending before SCOTUS. In that case, the Colorado Civil Rights Commission relied on a state statute prohibiting sexual orientation discrimination in public accommodations to order the cake shop to stop discriminating against same-sex couples. In response, the shop owners contend the Colorado statute violates their First Amendment rights to free speech and free exercise of religion.

Oral argument in Maserpiece Cakeshop is set for December 5. Although it’s not an employment case, I think the high court’s questioning at oral argument and ultimate decision will shed light on the justices’ views on sexual orientation discrimination in the workplace. Some of the same substantive legal principles are involved and I think we’ll get an early preview of how the Court will rule on its first case involving sexual orientation discrimination in the workplace, whether that case be Evans or another case.

Hopefully we’ll get a ruling from SCOTUS in a workplace discrimination case soon. Until then, we’re stuck with our present jurisprudential patchwork.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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