Contributions

Ensuring Equality in Employment: A plaintiff alleging sexual orientation discrimination necessarily states a valid sex discrimination claim under Title VII

by Eri­ka Mur­doch1

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.

Notes:


1.  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”).