Category Personnel/Employment
Title Sexual Orientation Discrimination under Title VII: Exploring the Developing Circuit Split
Preview Sexual Orientation Discrimination under Title VII: Exploring the Developing Circuit Split

Sexual Orientation Discrimination under Title VII: Exploring the Developing Circuit Split
   By Jessica Ross, Attorney

Title VII, the federal antidiscrimination law, protects against employment discrimination on the basis of race, color, religion, sex, or national origin. Ensuring compliance can sometimes be tricky, particularly when different courts come down on different sides of an issue. Recently, the federal appellate courts have done just that in regard to the following question: is sexual orientation discrimination the same as gender discrimination? This is currently a very important topic, and we continue our explanation of what the courts are doing with it.

In April 2017, Telios Law reported on how the United States Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that discrimination on the basis of sexual orientation is covered by Title VII of the Civil Rights Act of 1964. But not only did the Seventh Circuit become the first, it also parted ways with every other circuit to have decided the issue. Recently, the Second and the Eleventh Circuits were also urged to reconsider prior precedent. So far, those circuits have adhered to their prior decisions. Ultimately, the Supreme Court is likely to weigh in to settle this score, but for now, the state of the law remains a patchwork quilt across the nation. This post explores the Second and Eleventh Circuit decisions and discusses what may happen in the future given the split among the appellate courts.  

The Second Circuit Holds Firm: Christiansen v. Omnicom Group, Inc.1  

Like the Seventh Circuit, the Second Circuit (which covers Connecticut, New York, and Vermont) was recently asked to reconsider its prior holding that sexual orientation discrimination is not covered under Title VII. Unlike the Seventh Circuit, however, the Second Circuit (at least for now) has stuck with the previous line of cases.  

The case at hand involved the claim of an openly gay man who is HIV-positive. During his time with the company, he was subjected to humiliating harassment. Eventually, he filed a lawsuit in federal district court arguing that he was subjected to discrimination. The district court dismissed the lawsuit, holding that sexual orientation discrimination was not covered under Title VII under the Second Circuit's established precedent.  

The Second Circuit reversed, but not because it held that sexual orientation discrimination was covered. On the contrary, the panel recognized that the law was settled in its jurisdiction, and that it could not be overruled except by the entire appellate court sitting en banc, or the U.S. Supreme Court. Nevertheless, the panel concluded that the employee's claim should proceed as a gender stereotyping claim. Because the employee alleged that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons, gender stereotyping as discrimination on the basis of sex was possible.  

It is likely that this case turned out the way it did because one panel cannot overrule another. The opinion was per curiam, which means no one judge is attributed as the author. But the majority of the panel wrote separately to express the view that the court as a whole should revisit its precedent and hold that sexual orientation discrimination claims are covered under Title VII.  

Late in April, this plaintiff petitioned for the entire court to rehear the matter en banc. In late May, the court decided to take up the issue in another case: Zarda v. Altitude Express. If the entire court ultimately decides to follow the Seventh Circuit's lead, it is possible that the circuit split could continue to grow, making it even more likely that the Supreme Court will step in.  

The Eleventh Circuit Declines the Invitation: Evans v. Georgia Regional Hospital2  

The Eleventh Circuit, which covers Alabama, Florida, and Georgia, also recently had to decide whether Title VII covers sexual orientation discrimination. Unlike the Second and Seventh Circuits, however, the Eleventh Circuit had not yet itself decided this issue. In this case, the employee argued that she was discriminated against at work on the basis of her sex and targeted for termination for failing to conform to gender stereotypes. In essence, the case asked the court to decide for the first time that sexual orientation discrimination was actionable under Title VII. On appeal, the panel explained that its hands were tied. The court ruled that binding precedent from the Fifth Circuit required it to rule that sexual orientation discrimination was not actionable under Title VII. Here is the reason for this seemingly strange result. In the early 1980s, the Fifth Circuit (which had become too large) split up into two, creating the Eleventh Circuit in the process. As part of this transition, the Eleventh Circuit decided to adhere to those opinions of the Fifth Circuit decided prior to 1981.  

In this case, such a decision had been issued holding that sexual orientation discrimination was not a part of Title VII. Accordingly, the Court was compelled to abide by that precedent.  

Again, however, judges wrote separately to express their own views about whether sexual orientation discrimination is a part of Title VII. The dissent put forth similar reasons to those of other judges around the country advocating for a change in the law.  

Exploring the Circuit Split: What Comes Next?  

Now that the Seventh Circuit has ruled that sexual orientation discrimination is actionable as a separate claim of sex discrimination under Title VII, it is at odds with these and many other circuits to consider the issue. This creates a split among the federal circuit courts, which is something the Supreme Court looks to when deciding whether to take a case. Because the Supreme Court ultimately decides federal law, if the split continues to widen, it is likely that it will need to step in and settle the issue once and for all.  

For now, only those employers covered by the Seventh Circuit must comply with its ruling. However, state and local laws may apply in other jurisdictions and must be followed. And the dissenting and concurring opinions from the recent cases out of the Second and Eleventh Circuits may signal the changing tide of the law.  

Telios Law will keep tabs on this timely issue as it continues to be litigated across the country.  

1. Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017).
2. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017).  

About the Author  

Jessica Ross is an attorney with Telios Law PLLC, where she focuses on complex briefing, religious law, and litigation. Prior to joining Telios Law, Jessica served as a law clerk to the Honorable Nathan B. Coats on the Colorado Supreme Court, and the Honorable David M. Furman on the Colorado Court of Appeals.  

She can be reached at  

Telios Law serves businesses, individuals, ministries, and churches, representing them in litigation, appeals, and alternatives to litigation, as well as giving legal advice on a variety of issues.    

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