Sexual Orientation Discrimination or Stereotyping?
On March 27, 2017, the Second Circuit Court of Appeals ruled that Title VII cannot protect a gay employee from sexual orientation discrimination; however, Title VII may protect the employee from sex-based stereotyping under the same set of facts. In a separate case about two weeks before that, the Eleventh Circuit Court of Appeals reached a similar conclusion. By contrast, as we were preparing this post for publication, a full panel of the Seventh Circuit Court of Appeal decided (unsurprisingly, considering the tenor of oral arguments) that Title VII covers sexual orientation discrimination and sex-based stereotyping. (Due to spatial constraints, we will discuss the Seventh Circuit ruling in a near-future post).
Despite friend-of-the-court briefs by the Equal Employment Opportunity Commission (EEOC), 128 members of Congress, and other advocacy groups seeking to persuade the court that Title VII prohibits sexual orientation bias, the three panel members who heard the appeal wrote that they were “bound by the decisions of prior panels until such time as they are overruled either by an en banc [full] panel of our Court or by the Supreme Court.” A three-member panel of the court had also decided the most important decision that bound the Second Circuit in this case, Simonton v. Runyon, in the year 2000. Because Simonton held that Title VII does not cover sexual orientation discrimination, the EEOC and other advocates had sought to overturn it.
In the case before the appeals court, Matthew Christianson, a creative director for an international advertising agency, alleged that his supervisor drew multiple sexually graphic images of Christiansen on an office whiteboard, made remarks taunting Christiansen for being “effeminate and gay” and having “AIDS,” and distributed a photoshopped image showing Christiansen’s head cropped onto a female bikini-clad body with her legs up. A coworker allegedly said that this image depicted Christiansen as a “submissive sissy.” Christiansen is openly gay and HIV-positive.
The Second Circuit found that this kind of conduct may violate Title VII based on Price Waterhouse v. Hopkins. In that 1989 case, the US Supreme Court ruled that it was impermissible sex stereotyping under Title VII to require a female accounting manager to “walk more femininely, talk more femininely, dress more femininely, wear make‐up, have her hair styled, and wear jewelry” to improve her chances of making partner.
In Christiansen’s case, the appeals court ruled that the district court had rightly dismissed his sexual orientation bias claim, but had wrongly dismissed his gender nonconformity claim. “We hold that the lower court erred because a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation, but instead, constitutes a separate, distinct avenue for relief under Title VII,” wrote the court, reversing the lower court’s ruling. “In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton . . . merely hold[s] that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim” under Title VII, the court explained.
Two members of three-judge panel concurred in the result, but also recommended a reevaluation of Title VII’s coverage of sexual orientation discrimination. The concurring opinion noted that the Simonton court had felt similarly constrained to follow the law as it saw it then. Still, the Simonton court had decried the “appalling persecution” based on an employee’s sexual orientation, which that court saw as “morally reprehensible whenever and in whatever context it occurs.” In light of the changing legal landscape, the concurring opinion in Christiansen’s case urged the appeals court to revisit the issue of whether Title VII covers sexual orientation “when the appropriate occasion presents itself” (likely a reference to the next en banc panel in which the issue comes up). The concurring opinion then launched into a fifteen-page argument for re-interpreting Title VII to cover sexual orientation bias — presumably intended to help the full court reconsider. One of the rationales the concurring opinion advanced for interpreting Title VII to cover sexual orientation discrimination is that it is a form of illegal sexual stereotyping. The EEOC had made a similar argument in its brief. Christiansen v. Omnicom Group.
Lessons for Employers
One lesson for employers, and for those who make employment policy, is that treating employees differently because they don’t conform to gender norms is generally illegal. This kind of sexual stereotyping in the workplace can be illegal discrimination when it applies to employees who do not present or act according to heterosexual norms. Treating employees differently based on sexual orientation, whether this is based on how they dress or behave, or even who they date, expresses a heteronormative bias.
Another lesson is that it can be difficult to determine whether a homosexual employee who faces harassment at work is being targeted for their sexual orientation or gender nonconformity. This case illustrates that there’s not always a bright line between the two. The solution is to take all claims of harassment and discrimination seriously, and to promptly address them.
Many state and local jurisdictions do explicitly make sexual orientation discrimination at work illegal. Employment policies should follow suit, even if the federal courts lag behind. The Supreme Court may have to step in and decide the issue on a federal level now that there’s a circuit split as a result of the Seventh Circuit Court of Appeals’ rehearing of Hively v. Ivy Tech Community College (referenced above). In any event, private organizations are not so constrained by precedent as the courts when faced with discrimination of the kind the Simonton court called “morally reprehensible.” Unlike that court, chances are you can do something about it.
LawRoom (powered by EverFi) delivers online training to help your business meet compliance requirements both dynamically and scalably. In addition to our award-winning online courses, LawRoom delivers a robust, cloud-based learning management system to help you easily deploy and track our growing library of ethics, anti-harassment, data security and employee conduct courses.