Sexual Orientation: You Can Marry But You Can Still Be Fired

A federal appeals court just ruled that it is still legal under federal law to fire employees based upon their sexual orientation –


– even though they can legally marry.

Girlfriends, Sunset, Vintage, Bohemian

The appeals court in Chicago stated that “recent legal developments and changing workplace norms require a fresh look at the issue of sexual orientation discrimination under Title VII.”

However, despite this bold statement, and the bold “fresh look” which it gave to this issue – the Court nonetheless, with a decided lack of courage, decided to maintain the status quo.

sorrow and worry

The Issue

The issue of whether Title VII includes within its protection sexual orientation is pushing closer to a final resolution – the Chicago court having ruled that Title VII does not include within its protection sexual orientation, and the federal court of appeals in NYC (the Second Circuit), now facing the same issue (see my July 4th post).

I commented before that “Things are happening in employment discrimination law faster than I have ever seen or thought possible.  [This is] emblematic of the rapidity of the changes in society and employment law – which is, in effect, a significant microcosm of society at large.”

The Seventh Circuit, while acknowledging the same thing, just threw some tacks in the road.

Recruitment or Employment Issues Chalk Drawing

I wrote earlier that the EEOC recently sued to expand the rights of transgender people, while 23 states just sued to, effectively, to limit those rights. The EEOC has taken the position that “Title VII of the Civil Rights Act of 1964, [] protects employees from sex discrimination, including harassment based on gender identity and sexual orientation,” even though Title VII does not explicitly forbid discrimination based upon gender identity and sexual orientation.

The EEOC’s argument is that gender identity and sexual orientation are derivative of and included within the definition of sex discrimination in the statute.  However, the Courts have only recognized gender identity as being within Title VII – but not sexual orientation – a situation which the Seventh Circuit accurately called “illogical.”

The Appeal To The Second Circuit

In my post of July 4th I wrote about a new decision from a federal judge in NYC who, while reluctantly concluding that based upon federal appeal court precedent Title VII does not include sexual orientation, nonetheless explicitly “asked” the appeals court in her opinion to overrule its own precedent — because she was unhappy that she was forced to dismiss such a case.

She said that “In light of the EEOC’s recent decision on Title VII’s scope, and the demonstrated impracticability of considering sexual orientation discrimination as categorically different from sexual stereotyping, one might reasonably ask — and, lest there be any doubt, this Court is asking — whether that line should be erased.   Until it is, however, discrimination based on sexual orientation will not support a claim under Title VII; Plaintiff’s Title VII discrimination claim must therefore be dismissed.”

I mused that the appeals court may very well overturn its own precedent — if the EEOC and 128 Democratic members of Congress have any influence, as expressed in amicus briefs which they filed with the appeals court.

The Seventh Circuit, for its part, decided that it would not do that.

The New Seventh Circuit Decision

The Seventh Circuit stated that it’s precedent “has been unequivocal in holding that Title VII does not redress sexual orientation discrimination,” and that “Congress’ failure to act to amend Title VII to include sexual orientation is not from want of knowledge of the problem,” but that “We require a compelling reason to overturn circuit precedent.”

Clearly not a profile in courage, the Court nonetheless sounded quite eloquent in writing an opinion that can only be described as an apologia.

I quote a large section of the opinion below, and you can determine whether the decision is in fact a plea to change the law.  The Court wrote:

“As we will discuss further below, the district courts, which are the front line experimenters in the laboratories of difficult legal questions, are beginning to question the doctrinaire distinction between gender non-conformity discrimination and sexual orientation discrimination and coming up short on rational answers. In the process of concluding, after thorough analysis, that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex, the EEOC criticized courts – and pointed particularly to this circuit – that “simply cite earlier and dated decisions without any additional analysis” even in light of the relevant intervening Supreme Court law. … We take to heart the EEOC’s criticism of our circuit’s lack of recent analysis on the issue.

“Moreover, recent legal developments and changing workplace norms require a fresh look at the issue of sexual orientation discrimination under Title VII.

“Ordinarily this requires a decision of the Supreme Court or a change in legislation. … But it is also true that precedent can be overturned when ‘the rule has proven to be intolerable simply in defying practical workability, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.’

Focus On People Line Up

“It may be that the rationale appellate courts, including this one, have used to distinguish between gender non-conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis. It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes—with whom a person engages in sexual relationships.

“And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms. We allow two women or two men to marry, but allow employers to terminate them for doing so. Perchance, in time, these inconsistencies will come to be seen as defying practical workability and will lead us to reconsider our precedent. …

“Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it … many of the federal courts to consider the matter have stated that they do not condone it … and this court undoubtedly does not condone it. .. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent. …”

Takeaway:  This loaded issue may be heading to a resolution, but it may depend on the upcoming national elections.  Or the Second Circuit may bring it to a head sooner if it disagrees with the Seventh Circuit.


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]