Sexual Orientation—Might the 8th Circuit Join the Second, Sixth, and Seventh Circuits’ Party?

By:  Amy Epstein Gluck

Recently, sixteen attorneys general across the country filed an amicus brief (this is Latin for “friend of the court” and brings to a court’s attention other relevant, helpful matters that it may not have already considered) on behalf of their respective states seeking to prohibit discrimination based on sexual orientation under federal law. These attorneys general include those from Illinois, Iowa, Minnesota, California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Virginia, Washington, D.C., and now Vermont.

The brief asks the U.S. Circuit Court of Appeals for the 8th Circuit to review a Missouri district court’s decision based on decades of precedent and “common sense.”

The Amicus Brief

Why did these AGs find that common sense was lacking from the Missouri court’s decision?

Well, the Court determined that Title VII of the Civil Rights Act of 1964 (“Title VII”), the federal anti-discrimination law that prohibits sex discrimination, does not offer protection on the basis of sexual orientation because it is not expressly prohibited in the statute.

However, I’ll note that sexual harassment is not expressly proscribed by Title VII, yet it is illegal as sex discrimination. The Americans with Disabilities Act (“ADA”) does not expressly require engagement in the “interactive process” to determine if there exists a “reasonable accommodation,” yet the EEOC and courts continuously penalize employers for failing to engage in the interactive process under the ADA.

As Rich Cohen and I have written about, most recently herehere, and most recently here, federal appeals courts are divided about whether Title VII prohibits sexual orientation and gender identity discrimination since these are not explicitly protected classes in the text Title VII.

In their brief, the attorneys general urged the appeals court to join the growing number of federal appellate courts in recognizing that Title VII’s workplace protections extend to sexual orientation. They said:

The Amici States share a strong interest in combatting employment discrimination on the basis of sexual orientation. Research has consistently documented widespread discrimination against gay, lesbian, and bisexual individuals in the workplace and the negative impact such discrimination has on health, wages, job opportunities, productivity, and job satisfaction.

Indeed, many of the states (and their municipalities) involved in this brief have enacted laws to prohibit sexual orientation discrimination in the workplace.

But Wait…What Was That Missouri Case Even About?

The case that spurred the Missouri district court decision was Horton v. Midwest Geriatric Management. Horton sued the company that withdrew his job offer after the company discovered that he was gay.

What seems oxymoronic to me is that Horton lived in Illinois, where sexual orientation is a protected status, but worked in Missouri, where it is not.

Horton, like claimants in several other circuits, argued for a broader interpretation of “sex discrimination” under Title VII. In dismissing the case, however, the judge held that Title VII does not include sexual orientation as a protected status, citing this 30-year old case in which the court found that “Title VII did not prohibit discrimination against homosexuals.”

So, What’s the Amici Argument?

The AGs who signed the brief contended that Horton’s argument gave them a vested interest in seeking to make sexual orientation a federally protected status because states cannot protect their residents who work in other states.

The brief focuses on three bases:

  1. that sexual orientation discrimination is a form of sex discrimination because it would not occur “but for” the employee’s sex;
  2. sexual orientation discrimination is a form of “associational discrimination” because it is based on a protected classification—sex—of the individual with whom the employee associates; and
  3. sexual orientation discrimination amounts to unlawful sex stereotyping because it concerns the employee’s failure to conform to the sex-based stereotype that men can love only women, not other men.

As to the first basis, when we consider that pregnancy discrimination is a form of sex discrimination, as is sexual harassment, this is a pretty compelling argument.

As to the third basis (yes, I’m skipping the second), discrimination on the basis of gender stereotypes, i.e., how a person should look, dress, and act, is illegal. No one says it better than SCOTUS (the U.S. Supreme Court) in Price Waterhouse v. Hopkins, where the Court ruled:

an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and  out of a job if they do not. Title VII lifts women out of this bind.

Then, SCOTUS condemned sex stereotyping as a form of sex discrimination finding that allegations of gender identity and transgender discrimination based on non-conformance with gender norms and outdated stereotypes necessarily involve sex discrimination. This ruling combines the first and second bases of the amicus brief.

Second and Sixth Circuits

As our partner Eric Meyer wrote about here, the 2d Circuit recently took this same Price Waterhouse approach in Zarda v. Altitude Express when it ruled that the district court correctly determined that an employee was fired just because of her failure to conform to sex stereotypes, in violation of Title VII, and stated that:

…The district court erred, however, in finding that [the employee] could not alternatively   pursue a claim that she was discriminated against on the basis of her transgender and transitioning status. Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the [the employer] violated Title VII by firing Stephens because     she is transgender and transitioning from male to female.

…It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.

The Sixth Circuit just (like two weeks ago!) held the same was true in Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., here. Indeed, this court concluded “Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”

Employers: How are you wording your EEO policies? What’s next—will SCOTUS definitively rule on this issue? We’ll see, but the issue sure seems ripe for SCOTUS review.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.