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National Coming Out Day: The Legal Pipeline Continues to Flow for LGBTQ Employees

Authors: Nonnie L. Shivers (Phoenix), Christine Bestor Townsend (Milwaukee)

Published Date: October 11, 2018

An estimated 9 million adults in the United States are lesbian, gay, bisexual, or transgender. Eighty-seven percent of U.S. residents report knowing someone who is lesbian or gay, and half report having a close lesbian or gay friend. 

In 2015, the Supreme Court of the United States declared the fundamental right to marry is guaranteed to same-sex couples under the Fourteenth Amendment in Obergefell v. Hodges. Twenty-four states and the District of Columbia explicitly cover sexual orientation in their antidiscrimination laws, as do numerous other cities and counties across the country. While the U.S. Department of Justice, reversing the Obama administration, has taken the position that Title VII does not prohibit sexual orientation and gender identity discrimination, other federal agencies have not followed suit. Ensuring anti-discrimination protection under Title VII of the Civil Rights Act of 1964 for lesbian, bisexual, gay, and transgender employees remains a strategic priority for the EEOC, and the EEOC guidance on protections for such employees remains active. Guidance documents from the EEOC and the Occupational Safety and Health Administration (OSHA) provide that transgender employees should be granted access to the bathroom/facility that corresponds with their gender identity or expression. Consistent with guidance, the evolving law and in an effort to comply with the patchwork quilt of protections, many employers prohibit discrimination against LGBTQ employees (and some against gender expression) even in the absence of clear legal requirements.

While in Price Waterhouse v. Hopkins, the U.S. Supreme Court held discrimination due to gender nonconformity/stereotyping is prohibited as gender discrimination under Title VII, the Supreme Court has not ruled on whether Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation. There is currently a split among the circuits on this specific issue.

The evolution of this area of law spans nearly 40 years. In 1979, the Fifth Circuit became the first federal court of appeals to examine whether sexual orientation is covered under Title VII.  In Blum v. Gulf Oil Corporation, the court declared in a short opinion “discharge for homosexuality is not prohibited by Title VII.” Later that year, in DeSantis v. Pacific Telephone and Telegraph Co., Inc., the Ninth Circuit Court of Appeals also found sex discrimination provisions in Title VII “were intended to place women on an equal footing with men” and could not be extended to cover sexual orientation. In 1989, the Eighth Circuit Court of Appeals followed suit in Williamson v. A.G. Edwards & Sons. In a short opinion with no analysis, the court found sexual orientation was not protected under Title VII.

The tide shifted in 2017 and continues to evolve. In March 2017, the Eleventh Circuit Court of Appeals, which was created when the Fifth Circuit split in 1981, found itself bound by the Fifth Circuit’s Blum decision. In Evans v. Georgia Regional Hospital, a split Eleventh Circuit declared Title VII does not protect employees against sexual orientation discrimination, but allowed the plaintiff to replead her claim based on gender nonconformity. While Evans petitioned for Supreme Court review, the Court denied her petition at the end of 2017.

In April 2017, the Seventh Circuit Court of Appeals issued its en banc decision in Hively v. Ivy Tech Community College and became the first federal appellate court to find that sexual orientation is encompassed in Title VII’s definition of sex. It therefore held discrimination based on sexual orientation is prohibited by Title VII.  While the Seventh Circuit initially affirmed dismissal of Hively’s claims, the court took the rare step of granting an en banc hearing of the matter and reversed the lower court’s decision.

In February 2018, the Second Circuit Court of Appeals issued its holding in Zarda v. Altitude Express, Inc. In an en banc opinion, citing Hively, the Second Circuit ruled 10-3 that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” Each state in the Second Circuit (Vermont, Connecticut, and New York) explicitly protects sexual orientation under state antidiscrimination laws, but Zarda gave employees a way to get their case to federal court. The defendant has petitioned the Supreme Court for review.

The Eighth Circuit will revisit its earlier Williamson decision when it hears Horton v. Midwest Geriatric Management LLC. In Horton, the plaintiff was offered the position of vice president of sales and marketing with Midwest Geriatric Management LLC.  A few days after he disclosed that he had a partner who was male, Midwest Geriatric allegedly rescinded the job offer. The Missouri district judge dismissed Horton’s claims. Citing its 1989 binding decision in Williamson, lower court decisions, and congressional rejection of proposed amendments to Title VII to prohibit discrimination on the basis of sexual orientation, the court found sexual orientation was not covered under Title VII’s prohibition against discrimination on the basis of sex. Undeterred by Williamson, Horton appealed the ruling to the Eighth Circuit. Attorneys general from 15 states, the EEOC, various LGBTQ rights groups, and 47 businesses have joined amicus briefs in support of Horton. Various states and entities also filed amicus briefs in support of Midwest Geriatric. Briefing was completed by the parties in July 2018. Oral argument is expected later this year.

We can expect cases on this issue to continue into 2019—and until the Supreme Court provides guidance to the circuit courts.

Nonnie L. Shivers  (Phoenix)

Nonnie L. Shivers
Nonnie partners with employers and managers in three primary ways: litigation avoidance through proactive counseling and training; investigations and resolutions when pre-litigation concerns arise; and litigating legally complex and factually challenging cases to defend employer’s actions. Nonnie advises and counsels private and public employers in all aspects of employment law, including an emphasis on complex but proactive compliance projects, such as 50-state compliant wage deductions...

Christine Bestor Townsend  (Milwaukee)

Christine E. Bestor Townsend
Christine counsels her clients on a full range of labor and employment issues. She has frequently represented employers in litigation, successfully obtaining preliminary injunctions in matters related to restrictive covenants and trade secrets. She also regularly advises clients on the legal aspects of personnel decisions, employment policies, and employment agreements. She began her legal career as a litigator in the Intellectual Property department of a national firm’s Chicago office....

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