Many employers and employees do not realize that sexual orientation discrimination is not explicitly forbidden by federal law, nor is it explicitly forbidden by most state laws. Until recently, most Courts held that Title VII did not prohibit sexual orientation discrimination. However, the case law interpreting Title VII’s prohibition on gender discrimination is rapidly evolving and, in some jurisdictions, Title VII now protects gay, lesbian, and transgender employees. In display of just how unsettled this area of law is, the United States Courts of Appeals for the Eleventh and Seventh Circuits recently reached opposite results within a month.
In Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017), a panel decision of Eleventh Circuit held that Title VII does not cover sexual orientation. A panel decision involves three of the Court’s eleven judges, and may be reheard upon request by all eleven judges; however, on July 6, 2017, the Eleventh Circuit denied such a rehearing request, which leaves this decision as binding precedent. The Eleventh Circuit held six years earlier, however, that transgender employees are protected under the theory of gender-stereotyping. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011). In Glenn, the Court held that discrimination against a transgender individual because of gender-nonconformity was sex discrimination, reasoning that “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.” Id. at 1318–19. Nonetheless, the Evans panel held it was bound by precedent holding that Title VII does not protect against sexual orientation discrimination. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).
The Seventh Circuit reached the same result (also a panel decision) for the same reason: it had to adhere to prior precedent. However, the entire Court reconsidered the case and overturned that prior precedent. Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698, 718 (7th Cir. 2016), as amended (Aug. 3, 2016), reh'g en banc granted, opinion vacated, No. 15-1720, 2016 WL 6768628 (7th Cir. Oct. 11, 2016), and on reh'g en banc sub nom. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Less than a month after the Evans panel decision, the Seventh Circuit’s en banc opinion held that sexual orientation discrimination is covered by Title VII. Hively, 853 F.3d at 343. As the Court explained, as a lesbian, “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.” Hively at 346. Thus, “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” That means that it falls within Title VII's prohibition against sex discrimination. Hively at 347.
Should you have any questions or wish to discuss the impact these decisions may have on your business, we encourage you to contact our firm at (813) 223-1099, Mr. David Shankman at email@example.com, or Ms. Kendra Presswood at firstname.lastname@example.org.