It is time to update your employee handbook to state that your company prohibits discrimination on the basis of “sex, sexual orientation, gender identity, gender stereotypes, and gender nonconformity.” If you make this revision now, you may be slightly ahead of the curve for federal law, but have likely fallen behind in some of the more progressive state and local jurisdictions. Federal contractors are already barred from discriminating on the basis of sexual orientation, and we have written about state and local jurisdictions that prohibit sexual orientation discrimination here.
Until recently, federal courts of appeal kept issuing decisions that Title VII of the Civil Rights Act of 1964–which prohibits discrimination on the basis of “sex”–does not bar discrimination on the basis of sexual orientation, but does bar discrimination on the basis of gender nonconformity. This places federal courts in the awkward position of having to allow discrimination claims by those who were persecuted because they “act gay,” but not those who were persecuted because they “are gay.” The distinction is too flimsy to hold, and the federal courts are fairly uniform in their irritation at having to apply the law this way. In fact, as noted below, on April 4, 2017, the Seventh Circuit Court of Appeals ruled en banc that discrimination based on sexual orientation is sex discrimination.
Consider the following recent holdings:
Evans v. Georgia Regional Hospital
On March 10, 2017, in Evans v. Georgia Regional Hospital, a split Eleventh Circuit Court of Appeals panel upheld the dismissal of a Title VII discrimination claim. We previously wrote about this case here. The plaintiff, Evans, claimed that she was harassed because she didn’t conform to gender norms and was openly lesbian. The Court found that Evans failed to establish that the discrimination she suffered was based on her gender stereotype nonconformity instead of her sexual orientation. The Court ruled that discrimination based on sexual orientation is not actionable under Title VII, but discrimination based on non-compliance with gender stereotypes is. Justice William Pryor’s concurrence elaborated on the distinction. “Like any other woman, Evans can state a claim that she experienced, for example, discrimination for wearing a ‘male haircut’ if she includes enough factual allegations,” he writes, “But just as a woman cannot recover under Title VII when she is fired because of her heterosexuality, neither can a gay woman sue for discrimination based on her sexual orientation.”
Evans may be reviewed en banc (i.e., by a panel of all judges on the Eleventh Circuit Court of Appeals), but employers facing discrimination suits in the Second and Seventh Circuits quickly took notice of the decision. The employers use Evans to argue that courts should adhere to precedent and bar Title VII discrimination claims based on sexual orientation. The Plaintiffs argue that Evans does not preclude all claims based on sexual orientation, and, in essence, the distinction recognized in Evans is false.
Hively v. Ivy Tech Community College
April 4, 2017 Update: The Seventh Circuit en banc reversed the panel’s prior decision and ruled “that discrimination on the basis of sexual orientation is a form of sex discrimination.” The historic April 4, 2017 decision can be read by clicking here.
Previously, in Hively v. Ivy Tech Community College, the Seventh Circuit court of appeals affirmed the dismissal of a Title VII suit brought by a professor who claims that she was repeatedly denied promotions because she is gay. We wrote about the decision here. The Court agreed to rehear the case in October of 2016. The plaintiff’s employer notified the Court of the ruling in Evans on March 13, 2017, using the decision to bolster its position that discrimination based on sexual orientation is not actionable under Title VII.
Christiansen v. Omnicom Group, Inc.
The Second Circuit, meanwhile, has recently issued a decision in Christiansen v. Omnicom Group, Inc., a case brought by a gay executive who claims his supervisor harassed and discriminated against him by starting rumors that he had AIDS and positing and circulating pictures depicting the executive in lewd acts. The Equal Employment and Opportunity Commission sided with Christiansen, urging the Court to reverse a precedent set nearly 20 years ago that Title VII does not cover sexual orientation discrimination. Omnicom Group, Inc. notified the Court of the ruling in Evans, using it as further support for its position that sexual orientation claims are not actionable under Title VII. Christiansen responded, arguing that being attracted to the opposite sex is, itself, a gender stereotype. On March 27, 2017, the Second Circuit issued a decision that, regrettably, its precedents blocked it from ruling that Title VII would support a claim for sexual orientation discrimination, but that the gender nonconformity claim could proceed.
Ellingsworth v. The Hartford Insurance Agency, Inc.
A Judge in the district court for eastern Pennsylvania ruled on March 23, 2017, that gender nonconformity is actionable under Title VII. Judge Stengel denied an employer’s motion to dismiss in Ellingsworth v. The Hartford Insurance Agency, Inc., stating that “Calling a female employee a ‘dyke,’ ridiculing her publicly for ‘dressing like a dyke,’ and forcing her to peel back her clothing to show her coworkers her ‘lesbian tattoo,’ is not only offensive and inappropriate – it is prohibited by Title VII.” Notably, the plaintiff in Ellingsworth is not gay and lives with her husband.
Angela Terry v. Enterprise Holdings
On March 22, 2017, nearly the same day as the ruling in Ellingsworth, a plaintiff in the Eighth Circuit agreed to dismiss her request for reconsideration. In Angela Terry v. Enterprise Holdings, the plaintiff, who is lesbian, claimed she suffered harassment and a hostile work environment because of her sexual orientation. The district court ruled against her, and the Eight Circuit court of appeal affirmed. In response, the EEOC argued that the Eighth Circuit should reconsider because of the protection afforded to individuals who do not conform to stereotypical gender norms. It is unclear if the agreement to dismiss involved a settlement payment.
Change is in the air. Even though federal law remains reasonably settled, the unavailability of sexual orientation claims forces plaintiffs to plead the same claim in terms of gender nonconformity. Given the difficulty in distinguishing between the two, and the emergence of more progressive state and local laws prohibiting sexual orientation discrimination, employers should go ahead and update their policies to prohibit discrimination on the basis of sexual orientation. You will be ahead of the curve, but only slightly.