Appeals courts split on Title VII sexual orientation discrimination.

• Author: Rothenberg, Jessica
• Position: In the Spotlight

Title VII of the Civil Rights Act of 1964 makes it unlawful for covered employers to discriminate on the basis of a number of protected categories, including sex.

Since Title VII was enacted, the definition of discrimination based on sex has continually evolved. For example, in 1989, the U.S. Supreme Court held that gender stereotyping is a form of sex discrimination.

On the issue of whether sexual orientation discrimination is a form of sex discrimination, federal district and circuit courts have held both ways, for a variety of reasons. In 2015, the EEOC in Baldwin v. Foxx took the position that Title VII prohibits discrimination on the basis of sexual orientation.

The 2nd and 7th Circuits have recently issued conflicting rulings on the issue, with the 2nd Circuit holding that sexual orientation discrimination is not sex discrimination within the meaning of Title VII, and the 7th Circuit holding the opposite.

The 2nd Circuit case

In Christiansen v. Omnicom Group (No. 16-748, 2nd Cir., 2017), the plaintiff, an openly gay man, alleged his supervisor harassed him because of his sexual orientation. The district court dismissed the claim, holding that, under 2nd Circuit law, Title VII does not cover sexual orientation discrimination and the plaintiff did not have a plausible claim for discrimination on the basis of gender stereotyping.

The 2nd Circuit upheld the district court's holding that sexual orientation discrimination is not protected under Title VII.

However, the 2nd Circuit reversed the lower court's holding regarding the gender stereotyping claim. It noted that the plaintiff's complaint alleged multiple examples of gender stereotyping discrimination, including that his supervisor described him as "effeminate" to other people and drew pictures of the plaintiff "prancing around" in tights and a low-cut shirt. The court held that the harassment was based on "stereotypically feminine" traits and constituted a valid claim of gender stereotyping discrimination.

Thus, while the plaintiff was allowed to bring his harassment claims, it was on the basis of gender stereotyping, and not sexual orientation.

The 7th Circuit case

In Hively v. Ivy Tech Community College (No. 3:14-cv-1791, 7th Cir., 2017), the 7th Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination.

The plaintiff, a lesbian, was a part-time community college professor. From 2009 to 2014, she applied unsuccessfully for at least six...