Will the Supreme Court Resolve the Circuit Split About “Sex?”

By Frank. L. Day Jr.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment “because of . . . race, color, religion, sex, or national origin.” The term “sex” is not defined in the statute, and the legislative history includes few references that can be used to help determine the intended extent of this protected class. Hence, it has fallen on the courts to determine what Congress intended.

In the early years following the adoption of Title VII, few would have argued that the law prohibited discrimination on the basis of sexual orientation. At that time, it was even unclear whether Congress intended Title VII to provide men the same protections as it provided women. This debate continued until 1983 when the Supreme Court determined that discriminating against a male employee because of his sex was also unlawful.

The current debate is now whether discrimination because of “sex” also encompasses discrimination on the basis of sexual orientation. Until recently, the courts that had addressed this issue had generally held the term “sex” did not encompass “sexual orientation.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (holding that the definition of “sex” does not include sexual orientation); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (explaining that sexual orientation claims are not cognizable under Title VII); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (sexual orientation is not a prohibited basis for discrimination under Title VII). Many circuit courts reached this decision by finding that Congress had on several occasions proposed amendments to Title VII to make sexual orientation a protected category, but these amendments had never been adopted as law. The Ninth Circuit generally set forth the reasoning of these decisions in Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-663 (9th Cir. 1977) In Holloway, the Ninth Circuit rejected the notion that the plain language of Title VII protected against discrimination on the basis of sexual orientation by stating,

Giving the statute its plain meaning, this court concludes that Congress had only the traditional notions of “sex” in mind. Later legislative activity makes this narrow definition even more evident. Several bills have been introduced to amend the Civil Rights Act to prohibit discrimination against “sexual preference.” None have been enacted into law.

Congress has not shown any intent other than to restrict the term “sex” to its traditional meaning. Therefore, this court will not expand Title VII’s application in the absence of Congressional mandate. The manifest purpose of Title VII’s prohibition against sex discrimination in employment is to ensure that men and women are treated equally, absent a bona fide relationship between the qualifications for the job and the person’s sex.

Id.             The long-established trend of holding that discrimination on the basis of sexual orientation is not actionable recently came to an end when the Second and Seventh Circuits issued en banc decisions in Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018), and Hively v. Ivy Tech. Comm. Coll. of Indiana, 853 F.3d 339, 351-52 (7th Cir. 2017), respectively, overruling precedent in their circuits that had previously held that Title VII does not prohibit employment discrimination on the basis of sexual orientation. In both of these decisions, the courts determined that as a matter of statutory interpretation the meaning of “sex” could include sexual orientation and rejected the notion that the law should be limited to the traditional definition of “sex.”

The question of whether Title VII extends beyond the traditional view and encompasses sexual orientation was also recently presented to the Eleventh Circuit Court of Appeals in the case of Bostock v. Clayton County, Georgia, 723 Fed App’x 964 (11th Cir. 2018). This case is noteworthy because it was unclear whether the Eleventh Circuit would reaffirm the traditional view of Title VII or side with the Second and Seventh Circuits and interpret the law more broadly. Ultimately, the Eleventh Circuit in Bostock affirmed the trial court’s holding that sexual orientation is not protected by Title VII, relying on its binding precedent as the basis for its holding. The plaintiff has filed a petition for certiorari with Supreme Court to seek review of this decision.

This petition for certiorari is currently pending with the Supreme Court. While it is statistically unlikely that the Supreme Court will accept the Bostock case for review, the existing split among the circuits does provide an additional incentive for the Supreme Court to take up the issue. When the Supreme Court finally decides the issue, it is very likely that the outcome will depend on the approach that the majority of the Court takes to statutory interpretation and their view on the role of the courts in the federal system. Until the Supreme Court rules on the matter, no uniform definition of sex for the purposes of Title VII liability will exist among the federal appeals courts, and employers operating on a nationwide basis will be subject to different standards depending on the locations in which they operate.

Frank L. Day Jr., Counsel