Whether Title VII protects employees from discrimination based upon sexual orientation is one of the most contentious employment law issues being litigated in the federal courts today. EEOC contends Title VII covers sexual orientation, and a handful of district courts have agreed. But, as of today, every U.S. Court of Appeal to consider the question has ruled that sexual orientation is not a protected status under Title VII.
The Eleventh Circuit is the most recent to weigh in, with a new opinion issued March 10. (Evans v. Georgia Regional Hospital, No. 15-15234). In a 2-1 ruling, the court held that a female security officer who alleged she was discriminated against because she was a lesbian could not sue for sex discrimination under Title VII. District Court Judge Martinez, sitting by designation, wrote the opinion of the court, which is not particularly noteworthy and breaks no new ground in its analysis of the issue. What makes this ruling interesting, however, is the other two judges on the panel wrote separate opinions: Judge Pryor a special concurrence, and Judge Rosenbaum a dissent. Both the special concurrence and the dissent articulate in a fairly clear way the legal analysis supporting the competing arguments for and against extending Title VII coverage to include sexual orientation. In so doing, these judges have drawn a map for other circuits and perhaps the Supreme Court to follow, regardless on which side those other courts will rule.
Approximately twenty one states, including Iowa, have amended their civil rights statutes to cover sexual orientation as a protected status. The language of Title VII, on the other hand, remains essentially the same as when Congress passed the law in 1964. It prohibits an employer from discrimination in employment because of a person’s “race, color, religion, sex, or national origin.” Even though Congress has not amended Title VII to include sexual orientation as one of the protected statuses, proponents of broader coverage contend sexual orientation discrimination is a form of sex discrimination, and is therefore already covered under the law.
How does discrimination because of “sex” include “sexual orientation”? The argument traces its origins to a 1989 Supreme Court decision, Price Waterhouse v. Hopkins. The Supreme Court ruled Price Waterhouse violated Title VII when it refused to offer partnership to a female senior manager, based in part on the male partners’ beliefs that she was too aggressive and did not act sufficiently feminine. Price Waterhouse established the rule that an employer may not make employment decisions based upon “sex stereotypes.” (A more thorough discussion and analysis of the expanding notions of sex discrimination under Title VII is contained in my article published in the January 2017 edition of DRI’s For The Defense, “Pushing the Boundaries of Sex Discrimination Under Title VII: Does Discrimination “Because of Sex” Cover Gender Identity and Sexual Orientation”).
In her dissent in the Evans case, Judge Rosenbaum contends Price Waterhouse “substantially broadened the scope of actionable discriminatory stereotyping under Title VII. Before Price Waterhouse, Judge Rosenbaum noted that liability for sex stereotyping was “ascriptive”. That means an employer could violate Title VII by ascribing certain characteristics to individual women based upon a stereotype, without considering whether any individual woman actually possessed the characteristics. For example, an employer may assume women employees with young children have more family care obligations than men with young children, and as a result give more or better opportunities to men.
Price Waterhouse, however, recognized for the first time a form of what the judge calls “prescriptive” stereotyping. Judge Rosenbaum explained that, under the prescriptive type, Title VII imposes liability if an employee does not satisfy the discriminator’s stereotyped “prescription” of “what the employee of that protected group should be or how the employee should act.” (emphasis added). Unlike ascriptive,which attributes stereotyped characteristics to a female employee which she may or may not possess, prescriptive stereotyping treats the female employee less favorably because she fails to conform to the group’s prescribed stereotype.
As it relates to sexual orientation, Judge Rosenbaum contends one of the prescribed stereotypes of a woman is that she is sexually attracted only to men. Therefore, if an employer terminates a lesbian because she is sexually attracted to women, the employer has acted based upon her failing to conform to the prescribed gender stereotype. In this view, sexual orientation discrimination is by definition discrimination based upon a gender stereotype, which under Price Waterhouse is discrimination based upon sex.
Not surprisingly, Judge Pryor holds a more limited view of the doctrine of gender non-conformity. The concurrence distinguishes between an employee’s gender-based “behavior” and her gender “status”. Claims based upon gender non-conformity focus only on whether the employee’s behavior failed to conform to how the employer believes someone of that gender should act. Judge Pryor rejects the dissent’s view that Title VII liability exists when an employee’s status deviates from the stereotype of what a person should be. A person who experiences sexual orientation discrimination may also experience discrimination based upon the failure to conform to a gender stereotype. But, it is also true one can occur without the other, and as such the concepts must be treated as legally distinct. To treat the concepts as equivalent, Judge Pryor argues, imposes a false stereotype on gay individuals; namely, that their behavior always deviates from a certain prescribed gender stereotype.
Judge Pryor also rejects the dissent’s view that gender non-conformity, in and of itself, results in Title VII liability. In the concurrence’s view, gender non-conformity under Price Waterhouse is not a revolutionary new doctrine, but is simply an evidentiary approach to proving sex discrimination. In other words, an employer’s reliance on gender stereotypes is evidence the employer holds males and females to different standards of behavior. Discrimination based upon gender non-conforming behavior is used as a proxy for discrimination because of sex. But, a Title VII plaintiff must always prove that one of the enumerated statuses, in this case sex, is the basis for the employment decision. Sexual orientation is not a protected status under Title VII; therefore, sexual orientation alone, without evidence the person’s behavior failed to conform to gender stereotypes, does not result in liability.
The competing approaches of the concurrence and dissent are ultimately based competing judicial philosophies. Specifically, is establishing a new protected status under Title VII the role of Congress or the Courts? Judge Pryor contends that, because Congress has not made sexual orientation a protected class, the arguments the dissent makes should be made to Congress and not the court. Judge Rosenbaum disagrees. During the fifty years since Title VII was enacted, the courts have expanded the meaning of discrimination because of sex more broadly that the law’s sponsors probably intended. Based on this view, extending its meaning to cover sexual orientation is the next logical step.
The Eleventh Circuit’s opinion is not the last word on this subject. There are similar cases pending in the Second and Seventh Circuits, and it is likely those courts will issue opinions later this year. As Congress is not likely to amend Title VII any time soon, there is little doubt the Supreme Court will be asked to take up this issue soon.