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Does Title VII Prohibit Discrimination Based on Sexual Orientation? The Supreme Court Might Decide…

By Eric J. Schreiner

Last month a federal appeals court became the first federal appellate court in the country to rule that Title VII, the federal workplace antidiscrimination law, expressly prohibits discrimination based on sexual orientation. In Hively v. Ivy Tech Community College, the United States Court of Appeals for the Seventh Circuit, which has jurisdiction over cases from federal district courts in Illinois, Indiana and Wisconsin, held that discrimination based on an employee’s sexual orientation is a form of unlawful discrimination prohibited by Title VII.  Prior to the 7th Circuit’s ruling in Hively, federal appellate courts repeatedly had found that Title VII did not expressly prohibit discrimination based on sexual orientation.  While the 7th Circuit’s decision in Hively is only controlling on federal district courts in Illinois, Indiana and Wisconsin, it likely will be considered by other federal appellate courts as they grapple with the issue of sexual orientation discrimination under Title VII.

This is an area of the law that is unsettled. In fact, just a few weeks before the 7th Circuit issued its opinion in Hively, the United States Court of Appeals for the Eleventh Circuit (which has jurisdiction over cases from federal district courts in Alabama, Florida and Georgia) held that Title VII does not prohibit discrimination based on sexual orientation.  The United States Court of Appeals for the Second Circuit (which has jurisdiction over appeals from federal district courts in Connecticut, New York and Vermont) reached the same conclusion in two recent decisions (one issued just before Hively and one after), but in the first of those decisions two of the three judges on the panel suggested in a concurrence that the full 2nd Circuit needed revisit its prior decisions that found Title VII did not cover sexual orientation discrimination.  One of those decisions is now being reviewed by the full 2nd Circuit, which could lead to further rulings on the issue of sexual orientation discrimination in that circuit.  The Unites States Court of Appeals for the Third Circuit, which has jurisdiction over appeals from federal district courts in Pennsylvania and New Jersey, has not taken up this issue since the Hively ruling.  Prior rulings by the 3rd Circuit, however, have held that Title VII does not expressly prohibit discrimination based on sexual orientation, although there are more recent rulings by district courts in the 3rd Circuit that have distinguished these prior rulings.  The issue of whether Title VII expressly prohibits discrimination based on sexual orientation ultimately may need to be determined by the Supreme Court based on the split that has emerge in the federal appeals courts.

In light of the 7th Circuit’s decision in Hively, however, this is an area of the law that is in flux and should be monitored by employers.  Furthermore, as the issue of whether Title VII prohibits sexual orientation discrimination plays out in the federal appeals courts, employers still need to be careful when dealing with issues that may be related to an employee’s sexual orientation.  For example, some courts—including the 3rd Circuit—recognize “gender stereotyping” discrimination as a form of sex discrimination prohibited by Title VII.  This type of discrimination involves discrimination against an employee because he or she does not conform to gender stereotypes.  It can apply where a man is discriminated against because he acts feminine or a woman is discriminated against because she acts masculine.  Courts have held that this theory may be available where an employee alleges discrimination that involves his or her sexual orientation even if Title VII does not prohibit discrimination based on sexual orientation.

The recent decisions involving sexual orientation discrimination claims are a reminder to employers that they need to take such claims seriously. An employer who does not properly address discrimination claims based on sexual orientation proceeds at its own peril.  If you would like more information on this issue, please contact Eric J. Schreiner at 215.496.7217 or eschreiner@kleinbard.com.