Ending Sexual Orientation Discrimination in Employment
Twenty-two states, including California, and the District of Columbia, Guam, and Puerto Rico, protect both public and private employees from discrimination on the basis of their sexual orientation. But in more than half the country, a gay person can get married legally on Saturday, and for doing so be fired legally on Monday, so far as state and local law are concerned. For gay employees in 28 states, Title VII of the Civil Rights Act of 1964 is the only possible protection. Indeed, the U.S. Equal Employment Opportunity Commission (EEOC) received 1,762 LGBT-based sex discrimination charges in FY 2017, up from 1,100 in FY 2014.
Prior to 2017, every federal circuit to consider the question of whether Title VII’s prohibition of discrimination based on sex includes sexual orientation answered negatively. But since the U.S. Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) that same-sex marriage is a constitutionally protected fundamental right, the EEOC began asserting that sexual orientation discrimination is inherently sex discrimination under Title VII. Courts, the EEOC and the U.S. Department of Justice (DOJ) are grappling with the issue.
There is a circuit split over whether Title VII makes it illegal for employers to discriminate based on sexual orientation. Last year, the U.S. Court of Appeals for the Seventh Circuit held en banc by a vote of 8 to 3 that it does, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), while panels of the Second and Eleventh circuits held to the contrary. The Eleventh Circuit denied en banc rehearing, and in December 2017, the Supreme Court denied certiorari. The Second Circuit reheard arguments en banc in September—a decision is pending. Supreme Court review of the question is inevitable.
The plaintiff in the Seventh Circuit Hively case was a female lesbian part-time adjunct professor who alleged sexual orientation discrimination. The court held that two separate analyses—a comparator analysis, which analyzes the variable of sex by comparing the plaintiff to an otherwise identically situated person, and an associational analysis—each led to the conclusion that sexual orientation discrimination is sex discrimination under Title VII.