by Erika Murdoch*

Does a plaintiff alleging sexual orientation discrimination state a valid cause of action under Title VII of the Civil Rights Act of 1964? In this Contribution, Erika Murdock (’19) discusses whether sexual orientation discrimination is encompassed within the language of Title VII after recent EEOC and appellate court cases. Ultimately, this Contribution argues that Title VII’s prohibition of discrimination on the basis of “sex” inherently encompasses sexual orientation as a subset of the sex discrimination it bans.

Does a plaintiff alleging sexual orientation discrimination state a valid cause of action under Title VII of the Civil Rights Act of 1964? In 2017, the Equal Employment Opportunity Commission (EEOC) received 1,762 charges from Title VII plaintiffs who suffered discrimination due to their sexual orientation.2 For decades after Title VII’s enactment, courts unanimously held that the law did not protect against workplace discrimination and harassment based on an employee’s sexual orientation.3 But the EEOC reversed in 2015, finding that Title VII’s language inherently includes protections against sexual orientation discrimination.4 Since then, the two most recent circuit courts of appeal to hear sexual orientation-based Title VII cases have adopted the EEOC interpretation.5 This Contribution argues that Title VII’s prohibition of discrimination on the basis of “sex” inherently encompasses sexual orientation as a subset of the sex discrimination it bans.

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The Supreme Court recognizes that “Title VII is a broad remedial measure, designed ‘to assure equality of employment opportunities.’”6 Title VII prohibits employers from discriminating on the basis of five protected traits: race, color, religion, national origin, and sex.7 Courts traditionally interpreted discrimination on the basis of sex to refer only to discriminating “against women because they are women and against men because they are men.”8 In 1989the Supreme Court explained that a Title VII sex discrimination plaintiff must show his or her employer’s disparate treatment of men and women.9 But the Supreme Court’s evolving Title VII precedent now broadly interprets discriminating “on the basis of . . . sex” to cover sexual harassment,10 life expectancy,11 same-sex sexual harassment,12 and gender stereotype non-conformity.13 More generally, Supreme Court precedent regarding the Constitutional right to same-sex marriage increasingly reflects a recognition that laws “burden[ing] the liberty of same-sex couples . . . abridge central precepts of equality.”14

However, until 2015, courts interpreted Title VII narrowly, excluding protections against sexual orientation discrimination.15 Courts often relied on Title VII’s legislative history, and referred to Congress’s repeated rejections of proposed amendments that would have added “sexual orientation” to the list of protected traits in Title VII.16

But within two weeks of the Supreme Court’s recognition of the fundamental right to same-sex marriage in Obergefell v. Hodges, the EEOC reversed its previous stance and held that sexual orientation discrimination is a subset of sex discrimination under Title VII.17 After Obergefell, interpreting Title VII as excluding protections against sexual orientation discrimination would lead to the paradoxical result that an employee married to her same-sex partner can be legally harassed by her employer on the basis of her fundamental right to same-sex marriage.18 Thus, Title VII’s prohibition of discrimination on the basis of sex should be interpreted to inherently encompass sexual orientation as a subset of sex discrimination.

In line with this reasoning and after the decision in Baldwin, the Seventh Circuit in Hively v. Ivy Tech19 and the Second Circuit in Zarda v. Altitude Express20 both held that the language “on the basis of [] sex” necessarily includes sexual orientation, overruling decades of precedent. It is worthwhile to note that these two circuit courts are also the only two to convene en banc on Title VII cases since Obergefell and Baldwin.

Not all courts are in agreement with this reading of Title VII. The Eleventh Circuit has continued to interpret Title VII narrowly and exclude sexual orientation protection since Baldwin v. Fox. In Evans v. Georgia Regional Hospital21 the Eleventh Circuit declined to overrule precedent until either the Supreme Court speaks on the issue or the Eleventh Circuit convenes en banc.  However, the Eleventh Circuit later declined to rehear the case en banc, and the Supreme Court has not yet granted certiorari to such a case.22  

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Sexual orientation discrimination should be understood as a form of sex discrimination under Title VII. As Justice Scalia stated in Oncale, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”23  In at least three ways, Title VII’s prohibition of discrimination on the basis of an employee’s sex encompasses discrimination on the basis of sexual orientation, as identified by the EEOC, the Second Circuit and the Seventh Circuit. First, sexual orientation discrimination necessarily states a claim under the Price Waterhouse gender stereotype non-conformity theory. Second, “but for” a plaintiff’s sex in a sexual orientation case, she would not suffer the same discrimination. Third, sexual orientation discrimination is associational discrimination on the basis of sex.   

First, sexual orientation discrimination is a valid ground for a claim under the gender stereotype non-conformity theory the Supreme Court articulated in Price Waterhouse. In fact it is the “ultimate” gender stereotype to assume that men and women only have romantic relations with members of the opposite sex.24 Thus, a plaintiff alleging sexual orientation discrimination is necessarily alleging a valid claim.25 The Second Circuit noted in Zarda that this conclusion is reinforced by the fact that it is too difficult to draw a principled distinction between sex and sexual orientation under gender non-conformity.26 For example, if an employer insults a female employee for being “butch,” it is unclear whether that is a purely sex-based insult or if it is also based on her (perceived or actual) sexual orientation.27 This has led  some courts to reject plaintiffs’ sex discrimination claims when it seemed that the harassment they suffered was not purely on the basis of their being a man or a woman, but also due to their sexual orientation. For example, the Sixth Circuit in Vickers rejected the plaintiff’s claim for fear of “bootstrapping” protections for sexual orientation into Title VII.28 This impossibility of disentangling the two is exactly why courts are now beginning to recognize that sexual orientation is already inherently included in Title VII’s sex discrimination provision.

Second, Price Waterhouse prohibits employers from taking “sex-based considerations” into account.29 In sexual orientation discrimination claims, “but for” the plaintiff’s sex, he or she would not have been discriminated against.30 The reason for using the “but for” test is to demonstrate whether the trait at issue—here, sexual orientation—operates as a function of sex.31 To apply the test, the court should ask whether, for example, an employer’s harassment of a female employee married to another woman would still have occurred if she had instead been a man married to a woman. If the answer is that the employer would not have harassed a male employee in the same situation, then the employer was necessarily taking the employee’s sex into consideration in harassing her—sexual orientation in that case would be operating as a function of sex.32 And taking sex-based considerations into account is prohibited by Title VII’s plain language, as the Supreme Court established in Price Waterhouse.33

Third, sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex.34 Associational discrimination theory arises more often in the context of race—for example, a white Title VII plaintiff harassed because of her marriage to a black person has a viable race discrimination claim under this theory.35 Similarly, a female employee harassed because of her marriage to another woman has a viable sex discrimination claim.36 In Loving v. Virginia, the Supreme Court found Virginia’s ban on interracial marriage unconstitutional.37 In that case, Virginia’s law was premised on maintaining norms of who a white person can choose to marry (only another white person) and who an individual of any other race can choose to marry (only another person of color). The same reasoning applies identically here—opposing same sex relations is based on maintaining absolute gender norms for who it is appropriate for women to be attracted to or have sexual relations with (only men), and who it is appropriate for men to be attracted to or have sexual relations with (only women). As Judge Jacobs commented in his concurrence in Zarda v. Altitude Express, “with regards to both race and sex in associational discrimination, the basis is disapproval based on preconceptions about who is permitted to consort with whom.”38

Proponents of excluding sexual orientation protections from Title VII argue that to include such protections would violate separation of powers principles because courts are not free to read in protections that Congress has not recognized. Judge Lynch, dissenting in Zarda v. Altitude Express, emphasized that whatever the result may be, courts “must respect the policy choices Congress makes about which social problems to address, and how to address them.”39 But this reasoning is off base. Because sexual orientation discrimination is inherently covered in Title VII’s prohibition of sex discrimination, as the Seventh Circuit articulated, “[t]he question before us is not whether th[e] court can, or should, ‘amend’ Title VII to add a new protected category…[The court] must decide instead what it means to discriminate on the basis of sex, and…whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”40

Courts that previously interpreted Title VII as not protecting against sexual orientation discrimination relied heavily on Congress’s inaction or failure to add the language “sexual orientation” as an additional protected trait. There are two significant problems with this. The first is that Congressional inaction or acquiescence is a weak method for inferring Congressional intent. The Supreme Court has held that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress,” particularly where, as here “it concerns a proposal that does not become law.”41 This is because “several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change,” that it included other objectionable provisions, or that the language didn’t go far enough as proposed.42 Failures to amend a law can mean almost anything, and as the Supreme Court commented in Palmer v. Thompson, diving a legislature’s sole intent is nearly impossible as there is almost never a single intent behind a law anyway.43

The second problem with relying on Title VII’s legislative history as conclusive evidence that Title VII excludes sexual orientation protection is that Congress has never explicitly excluded sexual orientation from the law, as it did in the Americans with Disabilities Act and the Rehabilitation Act. In Title VII, by contrast, there is nothing that defines “sex” or explicitly limits the list of protected traits. The 1991 Amendments to the Civil Rights Act also included language suggesting that the amendments were meant to broadly expand, not restrict, Title VII’s protections.44

More importantly, as Justice Scalia stated in Oncale, it is the actual  text of a statute’s provisions and not the inchoate concerns of the legislators which govern courts. The relevant provision of Title VII here is a prohibition of “discriminating on the basis of…sex,” which, for the reasons above, necessarily includes sexual orientation.

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In Hively and Zarda, he Seventh and Second Circuit Courts of Appeal—the only two to convene en banc on Title VII cases implicating sexual orientation discrimination after Obergefell and Baldwin—have taken an important step forward in what will hopefully become a sea change in Title VII precedent, recognizing that sexual orientation discrimination necessarily includes sex-based consideration prohibited by that statute.

*  Erika Murdoch is a 3L at New York University School of Law. This Contribution is based on the problem posed to the team at the 2017 Robert F. Wagner National Labor and Employment Law Moot Court Competition hosted by New York Law School. The views expressed in this piece do not necessarily reflect the views of the author. Rather, this article is a distillation of one side of the arguments made by the team at the Wagner Competition.

2. LGBT-Based Sex Discrimination Charges, Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/eeoc/statistics/enforcement/lgbt_sex_based.cfm (last visited Oct. 9, 2018).

3. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 709-14 (7th Cir. 2016), rev’d by Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc).(noting that every circuit to hear the issue in the previous twenty years agreed that Title VII’s language and its jurisprudence do not support finding that the law extends to sexual orientation).

4. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (Jul. 16, 2015).

5. Zarda v. Altitude Express, Inc., 883 F.3d 100(2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc).

6. Pullman-Standard, Div. of Pullman v. Swint, 456 U.S. 273, 276 (1982) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973)).

7. 42 U.S.C. § 2000e-2(a)(1).

8. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).

9. Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989).

10. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

11. Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978).

12. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

13. Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989).

14. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 350 (7th Cir. 2017) (en banc).

15. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 709-14 (7th Cir. 2016), rev’d by Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc) (noting that every circuit to hear the issue in the previous twenty years agreed that Title VII’s language and its jurisprudence do not support finding that the law extends to sexual orientation).

16. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation”). See also Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005).

17. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (Jul. 16, 2015).

18. Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 n. 33(2d Cir. 2018) (quoting .883 F.3d at 131 n. 33 (quoting Hively, 830 F.3d at 714).

19. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 341 (7th Cir. 2017).

20. Zarda, 883 F.3d at 108.

21. Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1260-61 (11th Cir. 2017).

22. See also Hively, 830 F.3d at 718 (“Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent . . .”).

23. Oncale, 523 U.S. at 79.

24. Zarda, 883 F.3d at 120-21 (citing Hively, 853 F.3d at 346).

25. Id.

26. Id. at 121.

27. Id. (noting “the unworkability” of the standard that “sexual orientation discrimination is not a product of sex stereotypes”, and that “[l]ower courts operating under this standard have long labored to distinguish between gender stereotypes that support an inference of impermissible sex discrimination and those that are indicative of sexual orientation discrimination”) (citing Hively, 830 F.3d at 705-09).

28. See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (rejecting plaintiff’s sex discrimination claim because the court believed that plaintiff’s sexuality was the true cause for his harassment, despite the fact that plaintiff did not disclose his sexual orientation or include sexual orientation discrimination in his complaint).

29. Price Waterhouse, 490 U.S. at 239.

30. Zarda, 883 F.3d at 116 (citing Manhart, 435 U.S. at 711).

31. Id. (“This approach…determines whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different ‘but for that person’s sex.’”) (quoting Manhart, 435 U.S. at 711).

32. Id. at 119.

33. Price Waterhouse, 490 U.S. at 239.

34. Zarda, 883 F.3d at 124.

35. Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008) (recognizing associational discrimination as a Title VII violation in the case of a white plaintiff harassed on the basis of his marriage to a black person).

36. Zarda, 883 F.3d at 124.

37. Loving v. Virginia, 388 U.S. 1 (1967).

38. Zarda, 883 F.3d at 133.

39 Zarda, 883 F.3d at 166.

40. Hively, 853 F.3d at 343.

41. Pension Benefit v. LTV, 496 U.S. 633, 650 (1990) (internal citations omitted).

42. Id.

43. Palmer v. Thompson, 403 U.S. 217, 224 (1971).

44. See Civil Rights Act of 1991, Pub. L. No. 102-166 § 3, 105 Stat. 1071, 1071  (stating that one of the purposes of the Act was to “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination”).