Circuit Split Highlights Peaking Dispute: Title VII and Sexual Orientation Discrimination

The U.S. Supreme Court may soon have an opportunity to expand Title VII of the Civil Rights Act to prohibit discrimination based on sexual orientation. That is, unless Congress beats them to it.

Last year, the full Seventh Circuit panel overturned its own precedent, holding that Title VII prohibits employers from discriminating based on sexual orientation in Hively v. Ivy Tech Community College. But the split among circuits continues as the Eleventh Circuit rejected, in Evans v. Georgia Regional Hospital, a complaint filed by a lesbian security guard alleging discrimination based on her sexual orientation. Ms. Evans’ attorneys announced that they will appeal the decision to the U.S. Supreme Court.

After initially ruling that Title VII protections do not cover sexual orientation, the Second Circuit will be rehearing Zarda v. Altitude Express, Inc. with a full panel of judges later this year. The U.S. Department of Justice, as “friend of the court,” filed a brief Wednesday in the Second Circuit arguing that Title VII explicitly does not cover sexual orientation discrimination, and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

So, Congress may take action to amend the statute. However, several bills aimed at expanding Title VII have been proposed already, and with Congress beleaguered from the healthcare debate, this issue may not be resolved by the legislature before it reaches the high Court. At that point, the new conservative majority could defer to the legislature before expanding Title VII’s application.

Meanwhile, the Sixth Circuit will address a transgender employee’s claim of sex discrimination later this year in EEOC v. R.G. & G.R. Harris Funeral Homes. While it is unclear how the Sixth Circuit or the U.S. Supreme Court will rule on this issue, careful employers are including sexual orientation in their non-discrimination policies. And municipal and city ordinances prohibiting discrimination based on sexual orientation, as well as state laws, indicate a trend toward serious consideration of such a claim on the federal level.

Law clerk Andrew Lehmkuhl contributed to this post. Image by Ludovic Bertron, CC BY 2.0.