Is sexual orientation discrimination sex discrimination?

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sex.¹ Whether it prohibits employers from discriminating against gay and lesbian employees is a controversial issue, as there is a disagreement between circuits. Jameka K. Evans, v. Georgia Regional Hospital, et al. was the case that could have resolved the issue.² In Evans, the Eleventh Circuit Court of Appeals held in that the plaintiff, Jameka Evans, a former security guard for the defendant hospital in Savannah, Georgia, could not sue her former employer for sexual orientation discrimination because “sex” as used in Title VII does not mean sexual orientation.

In arguing for certiorari before the United States Supreme Court, plaintiff Evans stressed the importance of her case, in part, because of the disagreement between the Circuits and the conflicting positions the government had taken.³ The Equal Employment Opportunity Commission (EEOC) maintained that sexual orientation discrimination was illegal under Title VII, while the Department of Justice (DOJ) argued that sex discrimination did not include discrimination on the basis of sexual orientation.⁴ However, the Supreme Court refused to hear her petition to resolve whether sexual orientation discrimination is illegal under Title VII.⁵ In denying Evans’s petition for review, the Supreme Court let stand a disagreement between the federal circuit courts whether “sex” as used in Title VII also means sexual orientation. This article summarizes the case and analyzes the legal theories. A summary is given at the end.

Background

Plaintiff Jameka Evans worked at the hospital as a security officer for about a year and then left voluntarily. During her time at the hospital, she was denied equal pay or work, harassed, and physically assaulted or battered. She was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a "traditional woman[ly] manner."⁶ Although she was a gay woman, she did not broadcast her sexuality. However, her silence did not conceal her identity. It became evident that she identified with the male gender, because of how she presented herself using male uniform, low male haircut, shoes, etc.⁷ She was punished because her status as a gay female did not comport with her supervisor’s gender stereotypes and it caused her to experience a hostile work environment. For example, a less qualified individual was appointed to be her direct supervisor.⁸ After Evans lodged her complaints about some regulation or policy violations, her supervisor asked plaintiff Evans about her sexuality, raising the inference that her sexuality was the basis of her harassment and that upper management had discussed it during the investigation.⁹ Evans quit her employment and since there were no state laws protecting gays, lesbian and bisexual people in the State of Georgia, she filed a pro se lawsuit against the defendant hospital in federal court. She alleged that she was discriminated against because of her sex on two grounds:

1. Discrimination based on her sexual orientation, or status as a lesbian.
2. Discrimination based on gender non-conformity.

The “gender non-conformity” discrimination ground in the second claim was previously upheld in the Supreme Court’s Price Waterhouse v. Hopkins decision.¹⁰

A magistrate judge issued a report and recommendation (R&R) to dismiss the case. With respect to plaintiff's claim of discrimination based on her sexual orientation, the magistrate judge reasoned that—based on case law from all circuits that had addressed the issue—Title VII was not intended to cover discrimination against homosexuals.¹¹ With regard to plaintiff's claim of discrimination based on gender non-conformity, the magistrate judge concluded that it was "just another way to claim discrimination based on sexual orientation," no matter how it was otherwise characterized.¹² The magistrate judge recommended dismissing all of Evans's claims with prejudice, without allowing her to leave to amend, because, according to the judge, she pled no actionable claim nor seemed likely to be able to do so.¹³ Objecting to the R&R, plaintiff argued that her gender non-conformity and sexual orientation discrimination claims were actionable under Title VII as sex-based discrimination. The district court conducted a de novo review of the entire record, adopted the R&R, and dismissed the case with prejudice. Plaintiff appealed to the Eleventh Circuit.¹⁴

On appeal, plaintiff Evans, with the support of the EEOC as amicus curiae, argued that the district court erred in dismissing her claims. She argued that, contrary to the district court's assertion, sexual orientation discrimination is, in fact, sex discrimination under Title VII. For her claim of discrimination for failing to conform to gender stereotypes, she contended that her status as a lesbian supported her claim of sex discrimination, because discrimination against someone for her orientation often coincides with discrimination for gender nonconformity. Evans further asserted that discrimination based on gender stereotypes is a broad claim that encompasses more than just her appearance and provides for suits based on various other stereotypes, such as family structure.¹⁵

Discrimination “because of . . . sex” and “Gender Non-Conformity” Doctrines

The Eleventh Circuit rejected Evans’s claim of sexual orientation discrimination based solely on the Fifth Circuit’s 1979 Blum decision, which held that discharge for homosexuality was not prohibited by Title VII.¹⁶ The two-judge majority concluded that the court’s binding precedent forecloses such an action. The panel held that a lesbian who experiences discrimination because of her sexual orientation does not experience sex discrimination, but experiences discrimination because of gender nonconformity. This does not establish that every LGBT individual who experiences discrimination because of sexual orientation has a “triable case of gender stereotyping discrimination.” The plaintiff needs to include enough factual allegations to state her claim.¹⁷ The dissent pointed out that the majority was following the 1963 law before Title VII was enacted and before the U.S. Supreme Court handed down Price Waterhouse v. Hopkins.¹⁸

In Price Waterhouse, the accounting firm did not promote Ann Hopkins for partnership. Hopkins sued under Title VII for sex discrimination, claiming that she was denied promotion because she did not dress and act as the firm believed a woman should. The Supreme Court held that gender stereotyping—requiring women or men to comply with the stereotypes associated with their sex—is discrimination “because of . . . sex” and stated:
We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for, “ ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’ ”¹⁹

Thus, the Supreme Court further held that Hopkins was subjected to discrimination “because of sex” and denied partnership because she did not sufficiently meet partners’ expectations of how a woman should dress and behave, and that she could sue and may prove illegal sex discrimination based on sex-stereotyping.²⁰

Interpreting “Sex” Prong in “Sexual Orientation”

The Eleventh Circuit held in Evans that while plaintiff Evans could not sue for sexual orientation discrimination under Title VII, she could sue for discrimination based on gender nonconformity, and sent the case back to the lower court to allow her the opportunity to allege facts under that theory. The Eleventh Circuit court en banc refused to reconsider its nearly 40-year-old precedent, despite the fact that LGBT individuals achieved a landmark civil right victory in 2015.²¹

In April 2017—a month after the Eleventh Circuit issued its Evans decision—the Seventh Circuit reached an opposite conclusion and held that Title VII covered LGBT individuals. The court reasoned that it would require considerable calisthenics to remove “sex” from “sexual orientation.”²² The court held that sexual orientation discrimination is protected under Title VII’s “because of sex” prong, where a lesbian is subjected to discrimination because of same-sex romantic associations (had she been a man, a relationship with or attraction to a woman would not have led to discrimination).²³

The Seventh Circuit held that “it is actually impossible to discriminate on the basis of sexual orientation (or gender identity) without discriminating on the basis of sex.” The majority in the Hively case used the same rationale as used by other circuits to hold that sexual orientation discrimination is illegal because it is based on a sex stereotype of whom an individual should be attracted to. However, the dissent in Hively stressed that the Supreme Court did not hold that sex stereotyping was itself illegal, but merely held that it could establish sex discrimination.²⁴

In addition to the divergent views among the circuit courts, there is disagreement between agencies. EEOC supported the plaintiff Evans’s rights while the DOJ opposed protecting LGBT persons. The DOJ argued in Evans that the department speaks for the “people” and that if Congress wanted to include the protection, it would have so legislated. Thus, there is disagreement whether all instances of sexual orientation and gender identity discrimination should also be considered “sex” discrimination under federal law.

Plaintiff Evans appealed to the U.S. Supreme Court to grant certiorari to resolve the disagreement between the circuits on the issue and ensure that Title VII’s full protections extend to all workers. However, the Supreme Court refused to hear her case, leaving the issue unresolved.²⁵

Summary

“The nature of injustice is that we may not always see it in our own times.”²⁶ Perhaps, that is why the issue whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation has divided the federal appeals court. Until recently, all federal appeals court have held that Title VII does not protect discrimination against LGBT individuals. However, the Seventh Circuit decision has divided the circuits. The meaning of federal law, thus, varies depending on where the parties live. Such a conflict can prompt the Supreme Court to review. Until then, LGBT plaintiffs may fall back on the gender non-conformity doctrine. Second, approximately 20 states in the nation prohibit discrimination based on sexual orientation. The plaintiffs in these states may use the state law protection.

Mohammad “Mo” Iqbal received his J.D. from Northern Illinois University College of Law, L.L.M. from the John Marshall Law School, MBA from the University of Chicago and Doctor of Science degree in Civil Engineering from Washington University at St. Louis. Previously, he has served as General Counsel of Walker Parking Consultants/Engineers, Inc. He can be reached at mi@iqbalgroup.us.

This article was originally published in the Kane County Bar Association’s Bar Briefs April 2018 Diversity issue.