By:  Claudia D. Orr

For those of you who participated in my webinar on March 21 (still available at – http://www.plunkettcooney.com/news-events-86.html ) or attended the Detroit SHRM Dinner on March 22, you are aware that federal appellate courts have been virtually uniform in their holding that a sexual orientation discrimination claim cannot be brought under Title VII, the federal civil rights law. For those who were unable to participate, let’s take a quick look at a recent case to bring you up to speed on the current state of the law.

In December 2016, the U.S. Court of Appeals for the 11th Circuit heard oral arguments in the appeal by Evans, a lesbian security guard who claimed she had been forced to resign from her employment because of her sexual orientation. Evans v Georgia Regional Hosp. The 11th Circuit hears appeals from federal district courts in Alabama, Florida and Georgia.

Chai Feldblum (the first openly gay EEOC Commissioner) was present during the hearing and commented that “it should have been clear in 1964 when Title VII passed that it protected gay and transgender employees.”  However, on March 10, the 11th Circuit disagreed and ruled that Title VII does not permit a claim for discrimination based on sexual orientation.

The dissenting judge in Evans strongly disagreed with the majority, stating:

Plain and simple, when a woman alleges … that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be – specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women.

The 11th Circuit joined virtually every other federal circuit (including the U.S. Court of Appeals for the 6th Circuit, which hears appeals of cases from federal district courts in Michigan, Ohio, Tennessee and Kentucky) in holding that Title VII does not prohibit discrimination based on sexual orientation, until now…

Hively v Ivy Tech Community College of Indiana was brought by Kimberly Hively, who is openly lesbian, after she had been denied several adjunct professor positions by the college over the course of five years.  In its April 4 historical, but highly divided, en blanc ruling (meaning it was heard by all the judges in the circuit court), the U.S. Court of Appeals for the 7th Circuit held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”  In so ruling, the majority opinion expressly denied “amending” Title VII to add a new protected category. 

In a concurring opinion, Judge Posner agreed with the majority that the district court’s decision dismissing the case should be reversed but provided “an alternative approach that may be more straightforward,” stating:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.  This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.  We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes.  We are not.  We are taking advantage of what the last half century has taught.

The three dissenting judges criticized the majority for legislating from the bench.  This is often seen as one of the differences between “liberal” and “conservative” judges/justices.  Those who are liberal tend to believe that it is their role to interpret a law based on the meaning it would have today (therefore interpretations of the law can change over time), whereas conservative judges tend to interpret the law based on the meaning of the legislature at the time the law was passed.

When there is a split in the opinions of the federal appellate courts on an important legal issue, as now exists, the U.S. Supreme Court may be asked to decide the issue.  Currently, the Supreme Court is equally divided with four justices who tend to be liberal and four who tend to be conservative.

A 4:4 Supreme Court opinion would mean that the Circuit Court opinion it is reviewing would stay in place. But this is complicated by the fact that if it agrees to hear one of the Circuit Court’s opinions on this issue, it may also hear a case ruling opposite at the same time.  This may result in a lack of clarity on the issue from any ruling by a divided court. 

However, by the time this issue is brought before the Supreme Court it is likely that a conservative justice will be confirmed by the Senate and on the bench.  Of course, that would place the balance of the court in the same position as it was when the court heard arguments on the constitutionality of state law bans on same-sex marriages and that resulted in the ruling that allowed for same-sex couples to be married nationwide.

What is odd is that, currently, a same-sex couple could be legally married on Saturday and both spouses could be fired by their employers on Monday when they place a picture from their wedding on their desk. This makes little sense. It will be interesting to watch this issue play out. 

If you need advice concerning LGBTQ issues in the workplace (including updating your policies and practices, or assistance when an employee discloses their transgender status), consult with an experienced employment attorney, such as the author. 

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full-service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2017.