The Quest for Equal Dignity: Federal Statutory Protection Against Sexual Orientation Discrimination.

AuthorGuy, Alec D.

Walsh v. Friendship Village of South County, 352 F. Supp. 3d 920 (E.D. Mo. 2019).


    Over one million Americans are married to someone of the same sex. (1) Although the United States Supreme Court guaranteed the fundamental right of marriage to same-sex couples in 2015, (2) these individuals can still be denied housing or fired from their dream job after getting legally married. (3) For much of history, gay individuals have not been protected by the law, both statutorily and constitutionally. Private individuals are generally still free to discriminate against gay people today because federal statutes rarely prohibit discrimination based on sexual orientation. Consequently, many have argued that sexual orientation discrimination constitutes unlawful discrimination based on sex. Until recently, these arguments were summarily dismissed, as nearly all federal circuit courts held sexual orientation is not a protected class. (4) Some courts, however, have revisited precedent and held that discrimination based on sexual orientation constitutes unlawful sex discrimination. (5)

    In Walsh v. Friendship Village, the plaintiffs, a same-sex couple, sued a senior living community under the Fair Housing Act (the "FHA"), alleging discrimination based on sex. (6) The district court, bound by Eighth Circuit precedent, denied the claim. (7) This Note, in addition to explaining the Walsh decision, discusses Title VII of the Civil Rights Act, the FHA, and federal case law that bears on whether sexual orientation discrimination is a subset of unlawful sex discrimination. This Note ultimately argues that sexual orientation discrimination constitutes unlawful sex discrimination based on Supreme Court precedent and a plain language analysis of Title VII and the FHA.


    In 2009, Mary Walsh and Beverly Nance were legally married in Massachusetts after being in a committed relationship for nearly forty years. (8) At the beginning of the present lawsuit, Walsh was seventy-two years old and Nance was sixty-eight years old. (9) In 2016, with hopes of moving to senior housing, Walsh and Nance began researching Friendship Village, a senior living community that opened in 1978. (10) Walsh and Nance visited the facility and spoke with residents as well as staff, including the Residence Director, Carmen Fronczack. (11) In July of 2016, Walsh and Nance paid a $ 2000 deposit and signed up for a waiting list to live at Friendship Village. (12)

    A few months later, Fronczack asked Walsh about her relationship with Nance, and Walsh explained that she and Nance were married. (13) The next day, Fronczack informed Walsh that, due to Friendship Village's Cohabitation Policy (the "Policy"), Walsh and Nance could not share a single unit. (14) Additionally, Walsh later received a letter that recited the Policy and reiterated this decision. (15) The Policy stated that Friendship Village operates in accordance with biblical principles, as well as religious standards, and cohabitation is permitted only if the two individuals are spouses by marriage, parent and child, or siblings. (16) The term marriage was defined as "the union of one man and one woman." (17) The Policy had been applied for many years and continued to apply to new residents. (18)

    In October 2016, Walsh and Nance filed a complaint alleging unlawful sex discrimination with the United States Department of Housing and Urban Development ("HUD"). (19) HUD referred the complaint to the Missouri Commission on Human Rights ("MCHR"), but, around a month later, MCHR voluntarily sent the complaint back to HUD. (20) HUD then investigated from December 2016 to June 2018. (21)

    In July 2018, Walsh and Nance elected to pursue their claim in federal court. (22) They first alleged sex discrimination under both the FHA and the Missouri Human Rights Act, but the latter claim was removed in an amended complaint. (23) Walsh and Nance advanced three arguments: (1) they were treated less favorably due to their sex; (2) they were treated less favorably due to their association with another person of a particular sex; and (3) they were treated less favorably because they did not conform to various, traditional sex stereotypes. (24) The alleged stereotypes included "that a married woman should be in a different-sex relationship; that a married woman's spouse should be a man; and that women should be attracted to and form relationships with men, not women." (25)

    Friendship Village filed a motion for judgment on the pleadings, contending that the complaint did not state a claim upon which relief could be granted. (26) The United States District Court for the Eastern District of Missouri granted Friendship Village's motion. (27) The court held that the sex discrimination claim and gender stereotyping claims were truly based on sexual orientation, which is an unprotected class. (28) Further, the court denied the second claim, associational discrimination, because Walsh and Nance did not show such claims were actionable for statutorily unprotected classes. (29)


    Under Title VII and the FHA, sexual orientation is not explicitly covered as a protected class. First, this Part details the history of federal antidiscrimination statutes, such as Title VII and the FHA. Next, this Part turns to federal case law, which continues to evolve. Early decisions dismissed the idea that unlawful sex discrimination encompasses discrimination based on sexual orientation with very little discussion. Intermediate decisions were more sympathetic but continued to deny protection. While some circuit courts continue to follow precedent, others have determined that discrimination based on sexual orientation is impermissible under federal statutes.

    1. Federal Statutes

      Over fifty years ago, the Civil Rights Act of 1964 (the "1964 Act") was signed by President Lyndon B. Johnson after five amendments and over 500 hours of debate in Congress. (30) The 1964 Act prohibits discrimination in many types of conduct, including public accommodations, governmental services, and education. (31) Title VII of the 1964 Act, which applies to private employers, labor unions, and employment agencies, forbids employment discrimination based on race, sex, color, religion, and national origin. (32) For example, Title VII provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." (33) Further, the 1964 Act created the Equal Employment Opportunity Commission (the "EEOC") to assist in eliminating unlawful employment discrimination. (34)

      The Civil Rights Act of 1968 (the "1968 Act"), a supplement to the 1964 Act, was signed into law on April 11, 1968. (35) Title VIII of the 1968 Act, which addresses discrimination in housing, is known as the Fair Housing Act of 1968. (36) Within a year of the law's enaction, HUD wrote a Title VIII Field Operations Handbook and created a formalized complaint process. (37) The FHA "protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housingrelated activities." (38) The FHA prohibits discrimination based on race, color, national origin, religion, sex, familial status, and disability. (39)

      Specifically, the FHA makes it illegal to "refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin" in most circumstances. (40) Additionally, the FHA prohibits the creation and publication of "any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination." (41) Various other practices are forbidden by the FHA as well. (42) Sexual orientation, however, is not explicitly protected by this statute.

      While Title VII and the FHA are distinct, the laws are similar. Both statutes use identical language in forbidding discrimination "because of" an individual's sex. (43) The statutes were passed within five years of each other, and the 1968 Act is intended to supplement the 1964 Act. (44) Finally, courts have determined decisions under Title VII can apply with equal force to the FHA. (45)

    2. Early Decisions

      Even though federal statutes often do not explicitly list sexual orientation as a protected class, individuals have argued discrimination based on sexual orientation is a form of sex discrimination, and, as such, is unlawful. Until recently, federal circuit courts have dismissed this argument and held that discrimination based on sexual orientation is not prohibited.

      In Williamson v. A.G. Edwards & Sons, Inc., the United States Court of Appeals for the Eighth Circuit opined on whether sexual orientation is protected by Title VII. (46) There, plaintiff Williamson contended his supervisor falsely accused him of interrupting workflow by discussing the details of his gay lifestyle and of harassing another employee. (47) Williamson argued he was discriminated against based on his race because white employees engaging in similar behavior were not punished. (48) The trial court granted summary judgment for A.G. Edwards & Sons and determined Williamson believed he was treated differently due to his sexual orientation, not his race. (49) The Eighth Circuit affirmed, summarily stating that "Title VII does not prohibit discrimination against homosexuals." (50)

      Most other circuits have adopted a similar rule. (51) Before revisiting this...

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