For the first time, a federal appeals court has held that federal employment discrimination law protects LGBT employees from sexual orientation discrimination. Until this week, no federal court of appeals had reached that conclusion. This week’s groundbreaking decision from the U.S. Court of Appeals for the Seventh Circuit dramatically expands the rights of LGBT employees in the private sector.
Courts have traditionally rejected claims for sexual orientation discrimination under federal employment law
Title VII of the Civil Rights Act of 1964 is the central federal law prohibiting discrimination in employment. It makes it unlawful for employers with more than 15 employees to discriminate on the basis of “religion, sex, or national origin. . . .” 42 U.S.C. § 2000e-2(a). As we have written about extensively on this employment-law blog, over the years, employees have argued that the Act’s ban on “sex” discrimination includes sexual orientation discrimination. And for years, federal courts have uniformly rejected that argument. The Supreme Court has never previously ruled on the issue.
The past two decades, however, have witnessed a meteoric rise in legal protections for gays and lesbians under federal law. In 2003, the Supreme Court struck down state laws prohibiting homosexual sodomy. Ten years later, the Court struck down the federal Defense of Marriage Act, which barred same-sex couples from receiving any of the federal benefits extended to married couples. And of course in 2015, the Supreme Court held in Obergefell v. Hodges that the Constitution requires states to permit marriage equality. In addition, President Obama issued several executive orders protecting federal employees, and employees of federal contractors, from sexual orientation discrimination. Despite these advancements, until this week, no federal court had ever held that federal employment discrimination laws protect private-sector LGBT employees.
Hively v. Ivy Tech breaks new ground for LGBT employees
This week, in Hively v. Ivy Tech, the U.S. Court of Appeals for the Seventh Circuit held by an 8-3 majority that Title VII does in fact prohibit sexual orientation discrimination—a first-of-its-kind ruling from a federal appeals court. The crux of the decision is that “discrimination on the basis of sexual orientation is a form of sex discrimination.” Of the eight judges in the majority, five were appointed by Republican presidents. While the decision is complicated, a few rationales in the majority opinion stand out.
As the majority explained, while courts have not previously held Title VII prohibits sexual orientation discrimination per se, they have recognized what are known as “sex stereotyping” claims. These claims allege that an employee’s failure to conform to traditional gender roles was the basis for the employee’s termination. But courts have held this theory applies only to things like mannerisms, speech, and style of dress—not to sexual orientation itself. Expanding on the sex stereotyping theory, Hively held that sexual orientation “represents the ultimate case of failure to conform to the female [or male] stereotype.”
The majority also addressed the elephant in the statutory-construction room; when passing Title VII in 1964, Congress pretty obviously did not have protecting LGBT employees in mind. That does not matter according to the Court. Its support on the point came from an ironic and unlikely source: a 1998 decision penned by none other than Justice Scalia.
In Oncale v. Sundowner Offshore Services, a unanimous Supreme Court held, in an opinion written by Justice Scalia, that Title VII prohibits “same-sex” sexual harassment—i.e. when a harasser and victim are the same sex. That case involved male-on-male harassment. Holding such conduct violates Title VII, Justice Scalia noted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” Nevertheless, he explained, statutes often “go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Applying that rationale, the Hively Court held that Title VII extends to sexual orientation discrimination, even though the Act refers specifically to discrimination on the basis of “sex.”
Are LGBT employees now protected from sexual orientation discrimination in Ohio?
For now [see update below], the Hively decision applies only to employers within the Seventh Circuit’s jurisdiction: Illinois, Indiana, and Wisconsin. It does not apply to employers in Ohio, which is within the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit. But Hively is unlikely to be the last we’ve heard on this issue.
As noted, the Seventh Circuit’s decision conflicts with every other federal appellate court to have ever addressed sexual orientation discrimination under Title VII, including the Sixth Circuit. In fact, just last month, the federal appellate court based in Atlanta went the other way. The Second Circuit Court of Appeals in New York also recently declined to recognize these claims, citing decades of case law to the contrary.
Because the Seventh Circuit has broken new ground, we now have a “circuit split.” When the circuits disagree on significant legal issues, the Supreme Court often steps in. Whether employers may discriminate on the basis of sexual orientation certainly qualifies as significant. Although the employer in Hively has said it does not intend to appeal, it is a fairly safe bet that this issue will soon find its way to the Supreme Court.
*** UPDATE *** In a landmark 2020 decision, the Supreme Court held in Bostock v. Clayton County, Georgia that Title VII does protect LGBTQ employees from sexual orientation discrimination in the workplace.
There are some protections for LGBT employees in Ohio workplaces
If you believe you have been discriminated against on the basis of sexual orientation, contact a Cleveland employment lawyer to explore what legal protections might be available.