Emerging law update: Sexual orientation

Recent decisions increase the probability that the issue of discrimination based upon sexual orientation will be squarely before the Supreme Court by next year. As foreshadowed in the last issue of Legal Insights, the 7th U.S. Circuit Court of Appeals has become the first federal appeals court to hold that Title VII prohibits discrimination based on sexual orientation ("Judicial Compass Still Spinning on Sexual Orientation Claims," Spring 2017), but the 11th U.S. Circuit Court of Appeals saw it differently.

The 7th Circuit held in Hively v. Ivy Tech Community College of Indiana that discrimination based on sexual orientation is sex discrimination prohibited by Title VII. Rejecting any line between gender nonconformity and sexual orientation, the appeals court found that a plaintiff (in this case a female) who asserts that she has "experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." The court said this would be the case whether the plaintiff applied a comparative analysis of treatment in the workplace or an associational theory, that is, discrimination because of someone with whom the plaintiff associates.

Meanwhile, on July 7, Lambda Legal, a civil rights organization focusing on LGBT people and everyone living with HIV, announced its intention to appeal the recent decision of the 11th U.S. Circuit Court of Appeals in Evans v. Georgia Regional Hospital where a three-judge panel refused to recognize that Title VII offers protection for employees on the basis of sexual orientation and nonconformity with gender norms.

These recent decisions increase the probability that the issue will be directly in front of the Supreme Court for a decision in 2018. Until then, expect the judicial compass to continue to spin as to the legal direction of discrimination over sexual orientation.

—James H. Grove
grove@nicola.com