7th Circuit Court Upholds Sexual Orientation Discrimination Claims

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Can an employee sue her employer for sexual orientation discrimination? A recent decision by the the entire bench of the 7th Circuit said that Title VII’s prohibition against sex discrimination necessarily included sexual orientation discrimination claims.

In this blog post, I will review the Seventh Circuit en banc decision in Hively v. Ivy Tech Community College of Indiana. I will explain how the court found that Title VII should be read to prohibit sexual orientation discrimination. I will also explain how this decision pairs with another recent opinion to create a conflict that could result in consideration by the Supreme Court.

Sexual Orientation Discrimination at Ivy Tech

Kimberly Hively was an open lesbian and a part-time adjunct professor at Ivy Tech Community College’s South Bend campus. Her employers observed her kissing her then-girlfriend in the parking lot of the school. Since that time, Hively had applied for six full-time teaching positions between 2009 and 2014. But on top of being passed over all six times, in July 2014 her existing contract was not renewed. She filed a complaint with the Equal Employment Opportunity Commission, claiming that she had been the target of sexual orientation discrimination.

The EEOC issued a right-to-sue letter. So Hively sued Ivy Tech in federal district court (without a lawyer). The trial court, and later a 3-judge panel of the 7th Circuit Court of Appeals, ruled that there is no cause of action for sexual orientation discrimination based on existing case law in that court. Hively’s appellate attorneys then requested and “en banc” review, asking all the Circuit Court judges to weigh in on the issue.

Why En Banc Decisions are Different

To understand importance the en banc review, you first need an overview of the issue of “precedent”. When making legal decisions, judges at the trial court and appellate court level are required to apply existing case law. That means federal trial and appeals court judges are “bound” by U.S. Supreme Court cases and earlier decisions within their own circuit. But an en banc decision can sometimes overturn existing circuit court precedent. The 7th Circuit Court decided to hear review Hively “[i]n light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and bring our law into conformity with the Supreme Court’s teachings”.

Sexual Orientation Discrimination As Necessarily Sex Discrimination

The 7th Circuit entertained two related arguments in favor of sexual orientation discrimination. The first asked if the plaintiff’s sex had influenced her employer’s decision. That meant asking, “holding all other things constant and changing only her sex, [would she] have been treated the same way?”

The court emphasized the importance of holding all things constant except the plaintiff’s sex. It compared Hively’s situation to a male dating a female partner and working in the same position. This was a point of contention between the majority of judges and the dissent. The dissenting judges would have compared Hively to a homosexual man in the same situation — in other words, they would have changed both partners’ sex, instead of just her own. The court found that this approach changed too much. It also obscured the issue of gender non-conformity, which is an established form of sex discrimination. The court said:

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.

It found that there is no distinction between a gender nonconformity claim and one based on sexual orientation.

Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

Sexual Association Discrimination Compared to Interracial Marriage

The second argument in favor of Hively’s sexual orientation discrimination claim drew an analogy to the Supreme Court’s decision regarding interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967). That case, and several later court of appeals opinions, held that employment decisions made because of a protected characteristic of a person’s associate is actually discrimination based on his or her own traits. While the trait in question in those cases was race, the court said the same reasoning would apply to any other form of discrimination including national origin, color, religion, or sex of the person’s associate.

Supreme Court Decisions in Favor of Same-Sex Couples

The court found support for its decision in a number of existing Supreme Court decisions in favor of homosexual individuals and couples:

  • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), determined gender stereotyping was illegal sex discrimination.
  • Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), determined that sex discrimination can occur regardless of the sex of the harasser or the victim.
  • Romer v. Evans, 517 U.S. 620 (1996), struck down a state constitutional amendment forbidding laws that protect “homosexual, lesbian, or bisexual” persons.
  • Lawrence v. Texas, 539 U.S. 558 (2003), struck down a law criminalizing homosexual intimacy between consenting adults.
  • United States v. Windsor, 133 S.Ct. 2675 (2013), struck down the federal Defense of Marriage Act excluding same-sex spouses based on due process and equal protection principles.
  • Obergefell v. Hodges, 135 S.Ct. 2584 (2015), protecting the right of same-sex couples to marry.

The current state of employment discrimination law creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court said “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'”

Two Decisions Set Up Supreme Court Conflict

The Hively decision is directly contrary to the recent 11th Circuit decision in Evans vs. Georgia Regional Hospital. There, a 3-judge panel said that a lesbian employee may be able to raise a sex discrimination claim based on her behavior under a gender stereotype theory. However, it refused to recognize sexual orientation discrimination based solely on her status as a homosexual. The two decisions create a direct conflict. Discrimination based on a person’s same-sex relationship is legal in one part of the country, but illegal in another. These kinds of conflicts are ripe for resolution by the Supreme Court. If either Evans or Hively is appealed, the Supreme Court could soon review the rights of LGBT employees nationwide.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current sexual orientation discrimination case law. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.

Neil Gorsuch on Employment Discrimination — What His Confirmation Means for the Future

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On April 10, 2017, Neil Gorsuch was sworn in as the 113th Justice of the Supreme Court of the United States. Find out what that means for employment discrimination cases filed by women, LGBT, and disabled workers.

In this blog post I will review some of the 10th Circuit Court cases by Neil Gorsuch on employment discrimination as well as public commentary on his possible position within the Supreme Court. While no one can predict how a given judge or justice will rule on any particular case, I will discuss trends in his decisions which could indicate future his leanings on the Supreme Court.

Neil Gorsuch’s Confirmation to the Supreme Court

The process to fill the seat of Justice Antonin Scalia, who died in February 2016, has been long and involved. Senate Republicans refused to consider confirmation of Judge Merrick B. Garland, who was nominated by President Barack Obama in 2016, saying the choice should go to the next president. Following his inauguration, President Donald Trump put forward a new candidate: Judge Neil Gorsuch of the 10th Circuit Court of Appeals.

This time it was the Democratic Senators who objected. In addition to procedural complaints, they said that Neil Gorsuch’s record on women’s rights and workplace discrimination made him a dangerous choice to sit on the nation’s highest bench. In the end, the Republican-led Senate had to change its rules, lowering the voting threshold for confirmation to get around the Democrats’ filibuster. After all of the political maneuvering, Neil Gorsuch, age 49, was confirmed by a simple majority of the Senate, and took his judicial oath on April 10, 2017. The oath was administered by Justice Antony M. Kennedy, for whom Gorsuch had clerked early in his career.

Gorsuch’s confirmation does not end the questions about how the Justice will sway future Supreme Court decisions. Commentators continue to raise concerns about the way the Supreme Court’s newest justice has treated women, LGBT plaintiffs, and disabled workers in the past.

Neil Gorsuch on Women’s Rights

In his position on the 10th Circuit Court, Neil Gorsuch is perhaps most famous for joining the majority in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). In that opinion, the court ruled that closely-held corporations that have religious objections to contraception may refuse to pay for health insurance that included birth control prescriptions under the Affordable Care Act. However, Judge Gorsuch has also ruled on many gender discrimination cases, with mixed results:

  • Williams v W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir. 2007): The court overturned a jury verdict protecting a female hockey player from retaliation, but upheld the dismissal of 25 other counts of workplace discrimination.
  • Simpson v. University of Colorado Boulder, 500 F. 3d 1170 (10th Cir. 2007): The court ruled in favor of female college students who were sexually assaulted by the university’s football team, finding that the college was responsible and had shown deliberate indifference to the risks.
  • Orr v. City of Albuquerque, 531 F.3d 1210 (10th Cir. 2008): The court found in favor of plaintiffs on pregnancy discrimination claims, determining the defendant’s explanation was a pretext.
  • Pinkerton v. Colorado Dept. of Transp., 563 F. 3d 1052 (10th Cir. 2009): The court found that, while the plaintiff suffered sexual harassment, she improperly waited two months before reporting it, defeating her claim.
  • Strickland v. United Parcel Service, Inc., 555 F. 3d 1224 (10th Cir. 2009): Judge Gorsuch dissented from a decision finding sex discrimination against a female UPS driver. He felt that the supervisor had harassed male employees in the same manner as the plaintiff.
  • Almond v. Unified School Dist. No. 501, 665 F. 3d 1174 (10th Cir. 2011): The court found that the Lilly Ledbetter Fair Pay Act did not apply to school custodians required to transfer to different positions with lower pay.
  • Barrett v. Salt Lake County, 754 F. 3d 864 (10th Cir. 2014): The court upheld a jury verdict against the county finding it had retaliated against an employee who aided a female coworker in filing a discrimination claim.

While his decisions are mixed, some feel that what Justice Gorsuch has said off the bench may be a better gauge of his opinions now that he is not limited by higher court precedent. During its deliberation, former student Jennifer Sisk wrote to the Senate Judiciary Committee, warning that as her professor Gorsuch claimed women were using their companies for maternity benefits, only to quit after their babies were born. He told the class that future employers can and should question female interviewees about their family planning in order to protect their companies. Title VII prohibits discrimination based on pregnancy and prevents employers from asking these types of questions in the interview process. These comments, together with his checkered history on sexual harassment raise concerns about the future of gender discrimination claims at the Supreme Court level.

Neil Gorsuch on LGBT Employment Rights

Sexual orientation discrimination and harassment of trans* workers are on the forefront of employment discrimination law, and are likely headed to the Supreme Court in the near future. Justice Gorsuch has not ruled on many LGBT cases, but what he has to say tends to show he will not take kindly to the arguments.

In 2005, Gorsuch wrote an opinion article for National Review Online, in which he criticized liberal advocates for their use of litigation to push civil-rights reform.

His two decisions on LGBT issues at the 10th Circuit tend to echo that reservation:

  • Kastl v. Maricopa Co. Comm. College Dist. (unpublished): The court ruled against a transgender woman prohibited from using the women’s restroom at work until she provided documentation of gender reassignment surgery.
  • Druley v. Patton, 601 Fed. Appx. 632 (10th Cir. 2015) (unpublished): The court ruled against a transgender inmate seeking hormone treatment and transfer out of an all-male prison facility.

In addition, the Hobby Lobby decision suggests that Gorsuch may be willing to entertain a religious objection to hiring LGBT employees.

Neil Gorsuch on Disability Rights

The Americans with Disabilities Act requires employers to make reasonable accommodations to disabled employees. But in the past, Justice Gorsuch has not required employers or schools to go very far out of their way for the statute.

  • Thompson R2-J School v. Luke P., Ex Rel. Jeff P., 540 F. 3d 1143 (10th Cir. 2008): The court refused to define the “free appropriate education” a school district must provide to a disabled student. (A case applying this decision is currently under consideration by the Supreme Court.)
  • AF v. Espanola Public Schools, 801 F. 3d 1245 (10th Cir. 2015): The court required a student to exhaust her administrative claims under IDEA before suing under the ADA.
  • Garcia v. Board, Educ., Albuquerque Public Schools, 520 F. 3d 1116 (10th Cir. 2008): The court found harmful violations did not require equitable relief, giving the trial court discretion to deny any remedy.
  • Hwang v. Kansas State University, 753 F. 3d 1159 (10th Cir. 2014): The court ruled that reasonable accommodations did not require a university to hold a job open beyond six months’ sick leave.
  • Cinnamon Hills Youth Crisis v. St. George City, 685 F. 3d 917 (10th Cir. 2012): The court denied a disability discrimination case based on the disparate impact of policy on a residential treatment center.
  • Elwell v. Oklahoma ex rel. Bd. of Regents, 693 F. 3d 1303 (10th Cir. 2012): The court ruled that Title II of the ADA doesn’t allow for a disability discrimination lawsuit against a public employer.

These opinions show a strong tendency for Neil Gorsuch to read disability statutes in favor of employers, denying employee disability discrimination lawsuits when they don’t strictly comply with the statutes’ terms.

Some commentators warn that a judge’s circuit court decisions don’t always predict his (or her) Supreme Court positions. Without the constraints of precedential decisions, a Supreme Court justice can sometimes use the position to make the changes he or she wants to see in the law.

But no one justice, even Anthony Kennedy, controls the future of the Court. Even if Justice Neil Gorsuch does live up to his reputation regarding workers’ rights, his voice replaces a similarly conservative Justice, Anton Scalia. While the Justice’s confirmation may not push the court to the left the way Democrats may have wanted under Obama, it doesn’t automatically mean the end of advances in employment discrimination law either.

At Eisenberg & Baum, LLP, our employment discrimination attorneys have been litigating gender discrimination and disability rights claims across administrations and under a wide variety of courts. If you have been discriminated against at work, you don’t have to wait for the next change at the Supreme Court. Contact Eisenberg & Baum, LLP, today for a consultation.

11th Circuit Court Says No to Sexual Orientation Discrimination Claim

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A recent U.S. Court of Appeals decision has cast a shadow over the sexual orientation discrimination claims of gay and lesbian employees nationwide. Find out what the case does and doesn’t say about same-sex gender stereotype discrimination in the workplace.

In this blog post I will review the U.S. Court of Appeals decision in Evans vs. Georgia Regional Hospital. I will explain the different rulings contained within the opinion, and the impact of the decision on LGBT employees across the country.

11th Circuit Court Says No to Sexual Orientation Discrimination Per Se

The 11th Circuit made waves in the news recently. Reporters latched on to a portion of its opinion in Evans vs. Georgia Regional Hospital saying the court ruled that discrimination against gay workers was not illegal. But that’s not exactly what the court said. Instead, the court held that there is no independent cause of action (basis for a lawsuit) if a person is discriminated against solely because of his or her sexual orientation.

The case arose from a complaint filed with the Equal Employment Opportunity Commission by Jameka Evans against her employer, Georgia Regional Hospital. Evans worked as a security guard at the hospital. She filed a lawsuit on her own, without an attorney, claiming that she faced discrimination at work based on her sexual orientation and gender non-conformity. She said by wearing a male uniform and a short haircut her sexual orientation became evident. That was the basis for her receiving less desirable shifts and being targeted for termination. She also alleged that a less qualified coworker was promoted over her. When she filed a human resources complaint, she was retaliated against by a supervisor who created a hostile work environment.

The Court of Appeals said it could not find a basis for Evans’s sexual orientation discrimination claim based on status. It was prohibited by doing so by a 1979 circuit court opinion which stated “[d]ischarge for homosexuality is not prohibited by Title VII.” The court interpreted this to mean that discrimination based purely on a person’s LGBT status was not illegal under the federal Civil Rights Act.

Gender Non-Conformity Discrimination Is Still Illegal

Under the Evans decision, a person may not file an employment discrimination claim based simply on the fact that his or her employer was prejudiced against homosexual employees as a class. But that doesn’t mean that gay and lesbian workers aren’t protected. The court very clearly found that a lawsuit based on gender non-conformity is allowed. It said:

We hold that the lower court erred because a gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII.

So while Evans may not have had a claim for bias employment decisions based on the fact that she was a lesbian, she may have been able to bring that same lawsuit based on the way that status manifested. If her behavior fell outside of traditional gender norms (including choosing to wear pants or cut her hair short), and that behavior resulted in discriminatory actions against her, then Evans could still file suit under the gender discrimination protections in Title VII.

How Evans v Georgia Regional Hospital Affects LGBT Workers Nationwide

A Circuit Court opinion like Evans can affect employees well outside of its region. Only lower courts in Alabama, Georgia, and Florida are required follow to the 11th Circuit Court’s ruling. But courts nationwide are allowed to use this decision as a basis for their own legal decisions. Judges across the country may, if they choose, rely on the reasoning in Evans to reach decisions in other LGBT discrimination cases.

At the same time, the 7th Circuit Court of Appeals has just decided a sexual orientation discrimination case in favor of the employee. The 7th Circuit ruled that discrimination based on a person’s sexual orientation is gender discrimination per se (the claim Evans rejected). This could pave the way to a United States Supreme Court decision on the matter which could clearly establish or reject a gay or lesbian employee’s rights under Title VII.

How an Employment Discrimination Attorney Helps

Jameka Evans did not have an attorney; she filed her lawsuit herself. And that likely had a strong affect on her case. The Court of Appeals made clear that she may have had a stronger claim if her complaint had included more details about the employer’s discriminatory practices. In fact, the court directed that she be allowed to amend her complaint as the case progressed, to more clearly lay out her claims for behavior-based gender discrimination.

At Eisenberg & Baum, LLP, we don’t want anyone’s discrimination claim to fail because it was poorly written or presented. We understand that our clients may not always know how to present themselves before the EEOC magistrates or in court. That’s why we take the time to help our clients understand the process and learn the strengths and weaknesses of their cases. If you believe you have been subject to sexual orientation discrimination based on sexual stereotypes, contact Eisenberg & Baum today. Our employment discrimination attorneys will help you understand the law and present your best case.