Married on Saturday, Fired on Monday

JOANNE SCHIFFER—Over the past few decades, there has been an ongoing debate over what it means to discriminate “because of . . . sex” under Title VII of the Civil Rights Act of 1964.

Title VII states:

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. . .

In 1989, the United States Supreme Court decided Price Waterhouse v. Hopkins, and held that an employer that makes an employment decision based on sex stereotypes has acted “because of . . . sex.” Nine years later, the Supreme Court revisited the meaning of “because of . . . sex” in Oncale v. Sundowner Offshore Servs. Inc., and held that employees are protected from sexual harassment by employees of the same sex.

The current debate is whether “sex” under Title VII includes “sexual orientation.” Until last month, all U.S. Federal Courts of Appeals agreed that it does not. As recently as March 10, 2017, the U.S. Court of Appeals for the Eleventh Circuit decided Evans v. Georgia Regional Hosp., and held that Title VII does not include protection for discrimination on the basis of sexual orientation.

However, on April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit decided Hively v. Ivy Tech Cmty. Coll., becoming the first Federal Appellate Court to hold that “sex” under Title VII includes “sexual orientation.” A few weeks ago, four members of Congress asked permission to file an amicus brief urging the Eleventh Circuit to rehear Evans en banc.

The debates among the majority and dissenting judges and in the seventh and eleventh circuits involve intricate arguments such as: whether discrimination because of “sexual orientation” necessarily includes discrimination because of “sex,” whether the court has the power to update the meaning of “sex,” and whether discrimination on the basis of sexual orientation constitutes discrimination on the basis of sex stereotypes.

The dissent in Hivley argued that until now, there has not been any debate among the circuits and that the majority has suddenly found that “sex” under Title VII includes “sexual orientation.” The majority noted that the current state of the law is that “a person can be married on Saturday and then fired on Monday for just that act.” Accordingly, the majority decision insinuates that the driving force behind its change in perspective is the need to address the inconsistency that one can be discriminated against for exercising what the Supreme Court has held to be a “fundamental right.”

Although many cases decided since Hopkins have found that “sex” does not include “sexual orientation,” it seems that the Supreme Court’s decision legalizing same-sex marriage in Obergefell v. Hodges, modifies the analysis. Hopkins decided that evidence of an individual being discriminated against because he or she does not conform to the stereotypes of being a man or a woman, is evidence of sex discrimination. In Hively, the majority held that based on Hopkins, “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). . . .” The legalization of same-sex marriage has strengthened the argument that it is in fact a stereotype that only men and woman should be together. Now that the Supreme Court has recognized that people have the right to marry anyone they want, there is legally no right, no wrong and no norm. To assume or believe that an individual should only date or marry the opposite sex, is a stereotype.

However, the dissent in Hively argues that “heterosexuality is not a female stereotype; it is not male stereotype; it is not a sex-specific stereotype at all.” Meaning that an employer who will not employ both men and women who are homosexual is not discriminating on the basis of sex, because both men and women are being treated equally. This point is the pinnacle of the debate. While Hopkins held that sex stereotypes can be used as evidence of discrimination based on sex, the individual still has to show that sex was a basis for the employer’s decision. Accordingly, even though discrimination based on sexual orientation is sex stereotyping and evidence of discrimination, the question still is, whether the stereotyping is evidence of discrimination “because of. . .sex.” In other words, does “because of. . .sex” mean discrimination based on whether the person is a man or a woman, or in 2017 does a person’s “sex” encompass a broader meaning.

While it may not be clear whether Title VII and Supreme Court precedent already prohibit discrimination on the basis of sexual orientation, it is clear that it is necessary for the Supreme Court or the legislature to step in and provide clarity and consistency in this area of the law.

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