In April, we reported on the Seventh Circuit Court of Appeals decision in Hively v. Ivy Tech Community College of Indiana, which held that sex-discrimination under Title VII of the Civil Rights Act includes discrimination on the basis of sexual orientation.  Like the California federal trial court in Videckis v. Pepperdine University, the Seventh Circuit based its holding on the premise that sexual orientation discrimination claims are gender stereotype claims, which constitute sex discrimination claims under current Supreme Court precedent.  (While it has not determined that sexual orientation discrimination violates the Civil Rights Act, the U.S. Supreme Court has held that gender stereotyping constitutes sex discrimination in violation of the Act.)  The Seventh Circuit decision in Hively created a split among the Federal Circuit Courts on the issue of whether the Civil Rights Act prohibits sexual orientation discrimination, ripening the issue for Supreme Court review.

Recently, on September 7, 2017, attorneys representing Jameka Evans in the case Evans v. Georgia Regional Hospital, petitioned the Supreme Court for review of Evans’ Eleventh Circuit Court of Appeals case, based on the same issues presented in Hively.  Specifically, the Evans Supreme Court petition asks the Court “[w]hether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”

Evans, who describes herself as a gay female, alleged that she was harassed because of her perceived homosexuality, and punished in her employment because of her status as a gay female.  Evans claimed that in her employment as a security officer at a hospital, she was subjected to less desirable work schedules, singled out for rule infractions, and passed over for a promotion in favor of a less qualified individual who is not gay and does not transgress gender norms.  When Evans complained about this conduct internally to her employer, the employer inquired about Evans’ sexual orientation.  Prior to that, Evans had not discussed her sexual orientation with her manager.  However, Evans presented herself in stereotypically “male” ways.  She wore a male uniform, had a short haircut, and wore male shoes.

Evans’ petition to the Supreme Court largely relies on the holding in Hively, arguing that “‘[t]he logic of the Supreme Court decisions [such as Obergefell], as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,’ dictate that Title VII prohibits discrimination based on sexual orientation.”  (As the Hively holding states, this logic and common-sense reality persuaded the Court of Appeals that the time had come to overrule its previous cases that had endeavored to find and observe the line between discrimination on the basis of sexual orientation and discrimination on the basis of sex.)

The petition outlines three theories, discussed by the Hively Court, in support of its argument that the Eleventh Circuits decision was wrong.  First, the petition explains that discriminating against lesbian, gay, or bisexual employees inherently involves treating them adversely based on their sex, as demonstrated by the “simple test” that the law forbids treating a person in a manner which “but for that person’s sex” would be different.  For example, if a male employee marries a woman and maintains his job despite the marriage, but a female employee marries a woman and is terminated because that marriage, the female employee could demonstrate that her termination would not have occurred “but for” her female gender.  As the argument goes, if she was a male employee married to a woman, she would have retained her employment, hence her sex is the determinative factor in the employment decision.  Second, the petition provides that sexual orientation discrimination relies on impermissible “sex stereotyping,” which the Supreme Court has already held to be sex discrimination in violation of Title VII.  Under the sex-stereotyping theory, the petition explains that discrimination based on sexual orientation is “rooted in stereotypes about what it means to be a woman… It rests on the idea that women should not be attracted to women and that men should not be attracted to men.”  Third, the petition argues that the discrimination at issue is “associational” discrimination, based on the gender (or sex) of an employee’s partner.  The Supreme Court has held that an employment practice based on the sex of an employee’s spouse constitutes sex discrimination (based on association).  For example, in Newport News Shipping Co. v. EEOC, (1983) 462 U.S. 669, an employer was charged with discrimination for providing pregnancy-related health plan benefits to its female, but not also its male employees.  The U.S. Supreme Court held that the employer’s discrimination against female spouses in the provision of fringe health insurance benefits to its male employees was also discrimination against its male employees. The association discrimination principle was also used in Loving v. Virginia, wherein the discrimination at issue was based on the race of a spouse.

In concluding her petition, Evans does not ask the Supreme Court to add a “new protected category” to Title VII.  Rather, she asks that the Court recognize sexual orientation discrimination as a form of sex discrimination already covered by the Act.  The petition stresses the importance of review, and a clear holding, on this issue due to the current Circuit split, as well as a division among federal agencies, including the Equal Employment Opportunity Commission (“EEOC”) and the Department of Justice.

While we await the Supreme Court’s decision to grant or deny Evans’ petition, California employers are reminded that State law clarifies this issue for California employers.  California’s Fair Employment and Housing Act (“FEHA”) expressly prohibits discrimination on the basis of “sexual orientation,” in addition to prohibiting discrimination on the basis of sex, gender, gender identity, and gender expression.

Endnote:  The FEHA’s prohibition of sexual orientation discrimination is codified at California Government Code section 12940.

Addendum, December 18, 2017 – Last week, the U.S. Supreme Court denied Jameka Evans’ petition seeking review of the Eleventh Circuit Court of Appeals decision regarding her complaint of sexual orientation discrimination.  Accordingly, the Eleventh Circuit Court of Appeals decision stands, as does the Federal Circuit split the case created.  The decision does not impact California employees, who are otherwise protected from sexual orientation discrimination.  However, the decision means that protections afforded to California employees remain jurisdictionally limited.