Oh, wait a minute -- sexual orientation bias DOES violate Title VII?

Feeling whipsawed?

"C'mon . . . make up your mind!"

Last summer, I reported on the Hively v. Ivy Tech decision, in which a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that discrimination based on sexual orientation is not "sex discrimination" or unlawful sex stereotyping that violates Title VII. That decision has since been vacated, and the case will be heard again on November 30 by all of the Seventh Circuit judges.

The same issue is before the U.S. Court of Appeals for the Second Circuit, in Christiansen v. Omnicom Group, in which the plaintiff is appealing dismissal of his sexual orientation-Title VII lawsuit. Twenty-two organizations have filed amicus (friend of the court) briefs on behalf of the plaintiff/appellant, including the Equal Employment Opportunity Commission, the American Civil Liberties Union, the Lambda Legal Defense and Education Fund, and 128 members of Congress. The case is set for argument on January 20.

EEOC v. Scott Medical

And then last Friday, a federal district judge in Pennsylvania (Pennsylvania is in the Third Circuit) refused to dismiss a lawsuit brought by the EEOC against Scott Medical Health Center, P.C. The court was ruling on a motion to dismiss the complaint, not a summary judgment motion, which means that the judge was required to assume that all of the factual allegations in the lawsuit were true. (Scott Medical will have a chance to present its side of the story later.)

According to the lawsuit, Dale Baxley was harassed severely by his supervisor after the supervisor found out that Mr. Baxley was gay and had a male partner. Interestingly, the EEOC got involved because five women filed charges, contending that the same supervisor had sexually harassed them. In the course of the investigation, the EEOC learned about Mr. Baxley and (after arguably going through the procedural steps) filed suit on his behalf.

There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. . . . Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two." -- U.S. District Court Judge Cathy Bissoon

Scott Medical tried to get the lawsuit dismissed right off the bat, contending that the EEOC did not follow the required procedural steps and that the EEOC didn't have a valid Title VII claim because Title VII doesn't prohibit discrimination based on sexual orientation. Judge Cathy Bissoon refused to dismiss the lawsuit on either ground.

According to Judge Bissoon, "There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. . . . Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two."

Should a sexual orientation claim turn on whether the plaintiff is stereotypically "masculine" or "feminine"?

In short, the judge refused to engage in the "fine line-drawing" described in the Hively panel decision and which I've discussed on this blog (see Point No. 2). Refreshingly straightforward, but I do think that the "fine line" between unlawful sex stereotyping and discrimination based purely on sexual orientation is arguably mandated by the language and legislative history of Title VII. If I'm right, the proper way to remedy that is through legislation.

Post-Trump outlook

Assuming this issue ever gets to the Supreme Court, will this week's election make any difference to the ultimate outcome? I'm not sure. President-Elect Trump has given indications that he supports LGBT rights, but the people on his list of prospective Supreme Court nominees seem unlikely to adopt an expansive interpretation of Title VII. But that doesn't mean that Judge Bissoon's and the EEOC's view might not carry the day. The only vacancy Mr. Trump can fill immediately is the seat of the late Justice Antonin Scalia, who would almost certainly have voted to stick to the language of Title VII and its history. (In other words, Mr. Trump would simply be replacing one conservative jurist with another -- there would be no net "gain" of conservative justices in comparison with the Scalia days.) Which means the "conservative" side of this issue might have four reasonably sure votes -- the Trump appointee, plus Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas.

Anthony Kennedy.flickrCC.DonkeyHotey
"They don't call me 'The Swinger' for nothin'!"

But you need five votes to win. And "swing" voter Justice Anthony Kennedy seems receptive to judicial expansion of civil rights laws to include LGBT individuals, so he'd be likely to break a 4-4 tie by siding with the more "liberal" view, presumably joining Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Assuming it has to, will Congress act? Again, I'm not sure. Yes, Republicans are in the majority in both houses, but I think a growing number of Republicans favor protecting LGBT individuals, and they might unite with Democrats to take legislative action, especially if Mr. Trump takes a leadership role.

Or they might not. Stay tuned.

Image Credits: From flickr, Creative Commons license. Little Girl by Helga Birna Jonasdottir; image of Popeye playing card by Mark Anderson; caricature of Justice Anthony Kennedy by Donkey Hotey. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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