By Deryn Sumner, April 19, 2017

As we’ve apprised the FELTG audience before, there has been a steady progression over the years regarding how claims of sexual orientation discrimination have been processed by the Commission.  Initially, such claims were outright dismissed for failure to state a claim.  Then, the Commission took the view that claims of sexual orientation discrimination really stated claims of sexual stereotyping, and thus ordered agencies to start processing these claims under that theory.  Then, in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission dispensed with such analyses and definitively held that claims of sexual orientation discrimination are inherently related to sex and therefore should simply be considered claims of sex discrimination.

The wing of the EEOC that conducts litigation to obtain relief for victims of employment discrimination followed by filing civil actions in U.S. District Court, as we discussed last year in this newsletter, applying the argument in Baldwin.  These and other cases are making their way through the federal district courts and courts of appeals.  Just recently, on April 4, 2017, the Court of Appeals for the Seventh Circuit issued a decision affirming the holding that claims of sexual orientation state claims of sex discrimination.  The case is Hively v. Ivy Tech Community College of Indiana and in it, the Court of Appeals vacated the district court’s dismissal of the complaint on the basis that a claim of sexual orientation didn’t state a claim under Title VII, and remanded it.

The Court of Appeals decision referred to much of the same precedent as the EEOC’s decision in Baldwin, tracing the evolution from the Supreme Court’s holdings in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).  Noting that it could not act to amend Title VII to include sexual orientation, the Court turned to whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.  There was substantial discussion of statutory interpretation, which I will leave for those of you fascinated by such discussion to read on your own.  And the EEOC got credit for the decision in Baldwin, when the Seventh Circuit Court of Appeals noted, “the agency most closely associated with this law, the Equal Employment Opportunity Commission, in 2015 announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. Our point here is not that we have a duty to defer to the EEOC’s position. We assume for present purposes that no such duty exists. But the Commission’s position may have caused some in Congress to think that legislation is needed to carve sexual orientation out of the statute, not to put it in.”

Raising another aspect to the analysis, the Court of Appeals also discussed an argument raised by Hively referencing the Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1 (1967).  This is the case that held that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”  Ms Hively argued that her association with another woman was the cause of the discriminatory actions she experienced, which the Court credited in its decision.  As we see more of these decisions come out of Courts of Appeals, it becomes more and more likely that the Supreme Court will address whether Title VII includes sexual orientation claims as sex discrimination claims in the near future.  Sumner@FELTG.com

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