Two Appellate Courts Find Sexual Orientation Discrimination Is Not Covered by Title VII


This month, two separate U.S. Circuit Courts of Appeals, the 2nd and the 11th, each held that Title VII’s prohibition on sex discrimination does not include sexual orientation discrimination – a holding directly at odds with the Equal Employment Opportunity Commission’s position.

Background: In Christiansen v. Omnicom Group, Inc., a gay male employee alleged that his supervisor described him as “effeminate” to others and depicted him as a “submissive sissy,” among other things. In Evans v. Georgia Regional Hospital, a lesbian employee alleged that, because she presented herself in a masculine manner through her dress and grooming, she was denied equal pay and promotion, harassed, assaulted and forced to resign. Each of them sued their employer, claiming sexual orientation discrimination under Title VII.

The Courts’ Rulings:  In the Christiansen case, the 2nd Circuit clearly expressed reservations about the current state of the law, noting that “in the context of an appropriate case, our Court should consider reexamining the holding that sexual orientation claims are not cognizable under Title VII. Other federal courts are grappling with this question, and it well may be that the Supreme Court will ultimately address it.” Nonetheless, the Court found that it was bound by its earlier decisions and rejected the employee’s sexual orientation discrimination claim. The 11th Circuit simply noted that it was also bound by earlier precedent in dismissing the employee’s sexual orientation claim in the Evans case.

Both courts, however, recognized that the employees could assert a sex-stereotyping claim under Title VII – in other words that they were subject to discrimination because they did not conform to typical male or female sexual stereotypes.

What This Means for Employers: The battle over whether sexual orientation discrimination falls within the parameters of sex discrimination under Title VII continues. Despite the change in administration, the EEOC aggressively continues to push its position that sexual orientation (and gender identity) discrimination necessarily is sex discrimination under Title VII. Meanwhile, federal appellate courts thus far have rejected such an expansion of Title VII, while lower federal district courts have been inconsistent in their treatment. A final resolution of this issue will need to come from the Supreme Court or from Congress.