Essay

What Does it Mean to Discriminate “Because of . . . Sex”?

By Cora Allen

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against their employees “because of . . . sex.”[i] In the half-century since the passage of Title VII, the definition of “sex” discrimination has broadened significantly. Originally, under the Act, “sex” referred just to biological sex.[ii] Eventually, this was expanded to include discrimination based on sex stereotyping and, more recently, gender identity.[iii] Despite dynamic changes in the area, federal courts have been reluctant to embrace a definition of “sex” under Title VII that encompasses sexual orientation. This may be about to change.

In a recent article, Professor William N. Eskridge, Jr. points to several social developments supporting the contention that Title VII should cover sexual orientation discrimination.[iv] First, he points to fundamental changes in how society views the LGBTQ community, including the value we place on gay individuals in the workforce.[v] In the 1960s, such individuals were labeled “mentally ill, psychopathic, and predatory,” and, for this reason, many people believed they should be excluded from the workplace. This, of course, is no longer the prevailing view.[vi] Second, Professor Eskridge notes that numerous, fundamental legal changes have occurred in the last few decades, effectively enhancing many of the constitutional protections afforded to gay individuals.[vii] These developments, Professor Eskridge contends, have strengthened the argument for treating sexual orientation discrimination as a subset of discrimination “because of . . . sex.”[viii]

In Hively v. Ivy Tech Community College, the Seventh Circuit, sitting en banc, became the first federal court to hold that sexual orientation discrimination constituted discrimination “because of . . . sex,” as defined in Title VII.[ix] Writing for the majority, Chief Judge Diane Wood presented two lines of argument in support of the court’s decision. First, she viewed the plaintiff’s sexual orientation as a form of gender non-conformity, a claim generally understood as cognizable under Title VII via a sex stereotyping theory. Chief Judge Wood explained that “a policy that discriminates on the basis of sexual orientation . . . is based on assumptions about the proper behavior for someone of a given sex.”[x] Thus, if the plaintiff had been male, she would not have been fired for acting as she had in the case.[xi]

Chief Judge Wood also based the court’s holding on what she labeled an “associational theory.”[xii] Citing Loving v. Virginia,[xiii] she stated that “[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”[xiv] She reasoned, “[i]f we were to change the sex of one partner in a lesbian relationship, the outcome would be different.”[xv] Thus, “[t]his reveals that the discrimination rests on distinctions drawn according to sex.”[xvi] Ultimately, the court concluded that “[it] would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”[xvii]

In a compelling concurrence, Judge Richard Posner made the case for “judicial interpretive updating,” which would allow the court to give fresh meaning to statutory statements so as to “[infuse them] with vitality and significance today.”[xviii] In support of his argument for a more active judicial role, Judge Posner cited changes in social understanding and acceptance of homosexuality as encouraging the adoption of “an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) ‘what this country has become.’”[xix]

On February 26, 2018, the Second Circuit entered the fray, joining the Seventh Circuit and holding in Zarda v. Altitude Express that discrimination on the basis of sexual orientation is discrimination “because of . . . sex” under Title VII.[xx] Relying in part on the Hively opinion, Chief Judge Robert Katzmann concluded that “sexual orientation discrimination is properly understood as ‘a subset of actions taken on the basis of sex,’” and, thus, within the scope of Title VII protection.[xxi]

Despite the bold interpretations adopted by the Seventh and Second Circuit, it may be some time before other federal courts or the Supreme Court take notice. Just a month before the Hively decision, the Eleventh Circuit dismissed a similar claim of sexual orientation discrimination under Title VII, and the Supreme Court subsequently denied certiorari.[xxii]

Certainly, this will not be the last word from the Supreme Court on the issue. Given the significant social changes around recognition of LGBQ individuals in our communities, and Title VII’s expansive purpose as a “broad rule of workplace equality,”[xxiii] the time is indeed ripe for a new conception of what it means to discriminate “because of . . . sex.” As the Supreme Court noted in Oncale v. Sundower Offshore Services, Congress may not have considered sexual orientation discrimination when it enacted Title VII;[xxiv] however, the statute’s protections are not limited to “the principal evil[s] Congress was concerned with when” it was enacted, but also to “reasonably comparable evils . . . of any kind that meet the statutory requirements.” We may remain hopeful that, as the Lambda Legal Employment Fairness Project’s director, Gregory R. Nevins, asserted in response to the Supreme Court’s denial of certiorari in Evans v. Georgia Regional Hospital, “this was not a ‘no,’ but a ‘not yet.’”[xxv]

[i] Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)-(d) (2012).

[ii] Ulane v. Eastern Airlines Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (limiting Title VII to “discriminat[ion] against women because they are women and against men because they are men”).

[iii] Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (expanding the scope of actionable claims under Title VII to include discrimination based on non-conformance with gender stereotypes, thus encompassing a view of “sex” which includes “gender”); Schroer v. Billington, 577 F. Supp. 2d 293, 306 (D.D.C. 2008) (holding discrimination against employee because she planned undergo sex reassignment surgery was “literally discrimination ‘because of . . . sex’” under Title VII) (emphasis added).

[iv] William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 322-23 (2017).

[v] Id.

[vi] Id. at 322.

[vii] Id. See also Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating sodomy laws as unconstitutional); Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (upholding fundamental constitutional right to same-sex marriage).

[viii] Eskridge, supra note iv, at 322.

[ix] See generally 853 F.3d 339 (7th Cir. 2017).

[x] Id. at 346.

[xi] Id.

[xii] Id. at 347.

[xiii] See generally 388 U.S. 1 (1967).

[xiv] Hively, 853 F.3d at 347.

[xv] Id. at 349.

[xvi] Id.

[xvii] Id. at 350.

[xviii] Id. at 353.

[xix] Id. at 355 (emphasis in original).

[xx] Zarda v. Altitude Express, No. 15‐3775, slip op. at 10 (2d Cir. Feb. 26, 2018).

[xxi] Id. at 20 (quoting Hively v. Ivy Tech. Cmty. Coll., 853 F.3d 339, 343 (7th Cir. 2017)).

[xxii] Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir.), cert denied, 138 S.Ct. 557 (2017).

[xxiii] Harris v. Forklift Sys., 510 U.S. 17, 22 (1993).

[xxiv] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998).

[xxv] Adam Liptak, Supreme Court Won’t Hear Case on Bias Against Gay Workers, N.Y. Times (Dec. 11, 2017), https://www.nytimes.com/2017/12/11/us/politics/supreme-court-gay-workers-bias-case.html.