Hunton Retail Law Resource

Last week, the United States Court of Appeals for the Second Circuit, sitting en banc, became the second federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation. The Court’s decision in Zarda v. Altitude Express follows on the heels of the Seventh Circuit’s decision last April in Hively v. Ivy Tech Community College of Indiana, in which the Seventh Circuit also overturned its prior cases to recognize protections based on sexual orientation under Title VII.

These cases reflect a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII, and foreshadow a possible decision from the United States Supreme Court.

As we previously reported on the Hunton Employment and Labor Perspectives blog, Title VII prohibits workplace discrimination “because of…sex.” 42 U.S.C. § 2000e-2(a). Until recently, courts have consistently rejected claims based on sexual orientation, reasoning that “because of…sex” in Title VII encompassed claims based on an individual’s biological sex, not an individual’s sexual orientation.

Although courts in the past have uniformly held that sexual orientation claims were not viable under Title VII, courts have struggled in recent years to explain why. Part of the confusion lies with the Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court recognized “sex stereotyping” as a valid form of sex discrimination under Title VII. There, the Court held that men and women can state a viable claim for sex discrimination when they experience discrimination based on their failure to adhere to traditional gender norms.

In Hopkins, for example, the plaintiff alleged that she was a victim of sex stereotyping. Specifically, she alleged that her coworkers described her as “abrasive,” brusque” and “macho” and commented that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 234-35. The Supreme Court allowed the plaintiff’s claim to go forward, reasoning that Title VII prohibited an employer from “evaluat[ing] employees by assuming or insisting that they match the stereotype associated with their group.” Id. at 251.

In the wake of Hopkins, courts started to recognize that gay and lesbian applicants and employees could bring claims based on sex stereotyping. Under this line of cases, courts have allowed claims where gay male plaintiffs have alleged that they were discriminated against because they were too “effeminate” and where female lesbian plaintiffs alleged that they were perceived as not being “feminine” enough. Even still, most courts cautioned against allowing plaintiffs to “bootstrap” a sexual orientation claim under the guise of “sex stereotyping.” See, e.g., Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).

In recent years, however, courts have faced increasing difficulty distinguishing between gender-stereotyping and sexual orientation claims. This is due, in part, because “all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Vickers v. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir. 2006).

Moreover, courts have also faced a changing legal landscape, due in part to the Supreme Court’s recognition that the Constitution protects the right of same-sex couples to marry. As such, courts have questioned the seemingly “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Hivley, 830 F.3d at 714.

Addressing these perceived inconsistencies head on, the Second and Seventh Circuits rejected the dichotomy between sexual orientation and sex, and formally paved the way for employees to bring sexual orientation discrimination suits until Title VII against employers in some of the most populous states.

Although LGBT advocates have secured two high-profile victories, the issue remains open in the other circuits throughout the country. Many legal commentators suspect that the United States Supreme Court will ultimately have to resolve the matter. Until then, U.S. retailers, particularly those with operations in the Second and Seventh Circuits, should continue to closely monitor developments in this area of employment law.