Last July the Equal Employment Opportunity Commission (EEOC), reversing its position dating back fifty years, issued a ruling that a gay man could charge a federal agency employer with sex discrimination in violation of Title VII of the Civil Rights Act of 1964 for denying a promotion because of his sexual orientation. The Baldwin v. Foxx decision is an administrative ruling, not binding on federal courts, and federal trial judges are sharply divided on the issue.
During May and June, federal district judges in Virginia, New York, Illinois, Mississippi and Florida issued rulings in response to employers’ motions to dismiss Title VII claims of sexual orientation discrimination. In each case, the employer argued that the plaintiff’s Title VII claim had to be dismissed as a matter of law because the federal employment discrimination statute does not forbid sexual orientation discrimination.
Title VII was enacted as part of the Civil Rights Act of 1964. Although the House committee considering the bill took evidence about sex discrimination, it decided to send the bill to the House floor without including “sex” as a prohibited basis for discrimination, because this was deemed too controversial and might sink the bill. During the floor debate, however, a southern representative, Howard Smith of Virginia, a conservative Democrat who was opposed to the proposed ban on race discrimination, proposed an amendment to add “sex” to the list of prohibited grounds. Most historical accounts suggest that Smith’s strategy was to make the bill more controversial, thus ensuring its defeat. More recent accounts have suggested that Smith, although a racist, was actually a supporter of equal rights for women and genuinely believed that sex discrimination in the workplace should be banned. (His amendment did not add “sex” to the other titles of the bill addressing other kinds of discrimination.) The amendment passed, and ultimately the bill was enacted, going into effect in July 1965.
Because “sex” was added through a House floor amendment, the Committee Report on the bill says nothing about it, and the subsequent debate in the Senate (where the bill went directly to the floor, bypassing committee consideration) devoted little attention to it, apart from an amendment providing that pay practices “authorized” by the Equal Pay Act of 1963 would not be outlawed by Title VII. As a result, the “legislative history” of Title VII provides no explanation about what Congress intended by including “sex” as a prohibited ground of discrimination.
During the first quarter century of Title VII, the EEOC and the federal courts consistently rejected claims that the law outlawed sexual orientation discrimination. In the absence of explanatory legislative history, they ruled that Congress must have intended simply to prohibit discrimination against women because they are women or against men because they are men, and nothing more complicated or nuanced than that. This interpretation was challenged in 1989, when the Supreme Court ruled in Price Waterhouse v. Hopkins that a woman who failed to conform to her employer’s sex stereotypes could bring a sex discrimination case under Title VII, adopting a broader and more sophisticated view of sex discrimination.
Since 1989, some lower federal courts have used the Price Waterhouse ruling to allow gay or transgender plaintiffs to assert sex discrimination claims in reliance on the sex stereotype theory, while others have rejected attempt to “bootstrap” sexual orientation or gender identity into Title VII in this way. More recently, several federal appeals courts have endorsed the idea that gender identity discrimination claims are really sex discrimination claims, and a consensus to that effect has begun to emerge, but progress has been slower on the sexual orientation front.
Last summer the EEOC’s decision in Baldwin v. Foxx presented a startling turnabout of the agency’s view. The EEOC does not adjudicate discrimination claims against non-governmental and state employers, but it is assigned an appellate role concerning discrimination claims by federal employees. In Baldwin v. Foxx, the EEOC reversed a ruling by the Transportation Department that a gay air traffic controller could not bring a sexual orientation discrimination claim under Title VII. Looking at the developing federal case law since Price Waterhouse and seizing upon a handful of federal district court decisions that had allowed gay plaintiffs to bring sex discrimination claims under a sex stereotype theory, the agency concluded that a sexual orientation discrimination claim is “necessarily” a sex discrimination claim and should be allowed under Title VII.
Since that July 15 ruling, many federal district judges have had to rule on motions by employers to dismiss Title VII sexual orientation discrimination claims. The precedential hierarchy of the federal court system has required some of them to dismiss those claims because the circuit court of appeals to which their rulings could be appealed had previously ruled adversely on the issue. In other circuits, however, the question is open and some judges have taken the EEOC’s lead.
On May 5, U.S. District Judge Robert E. Payne in Virginia found that he was bound by 4th Circuit precedent to reject a sexual orientation discrimination claim under Title VII, even though the plaintiff, an openly-gay administrative assistant at Virginia Union University, had alleged clear evidence of anti-gay discrimination by the university president. Judge Payne found that a 1996 decision by the 4th Circuit, Wrightson v. Pizza Hut of America, was still binding. Payne noted that other federal trial courts were divided about whether to defer to the EEOC’s Baldwin ruling, but in any event he felt bound by circuit precedent to dismiss the claim.
A district judge on Long Island, Sandra J. Feuerstein, reached a similar result in Magnusson v. County of Suffolk on May 17, dismissing a Title VII claim by an openly-lesbian custodial worker at the Suffolk County Department of Public Works, who alleged that her failure to comply with her supervisors’ stereotypes of how women should dress had led to discrimination against her. Relying on prior decisions by the New York City-based 2nd Circuit Court of Appeals, Judge Feuerstein refrained from discussing more recent developments and dismissed the claim, asserting that the plaintiff’s “claims regarding incidents of harassment based on her sexual orientation do not give rise to Title VII liability.”
However, on May 31, a senior district judge in Illinois decided that prudence in light of the developing situation counseled against dismissing a pending “perceived sexual orientation” claim in the case of Matavka v. Board of Education. Judge Milton I. Shadur confronted the school district’s motion to dismiss a discrimination claim by an employee at J. Sterling Morton High School, who alleged that “he experienced severe harassment from his coworkers and supervisors, including taunts that he was ‘gay’ and should ‘suck it,’ frequent jokes about his perceived homosexuality, and hacking of his Facebook account to identify him publicly as ‘interested in boys and men’, and an email stating ‘U. . . are homosexual.’” Judge Shadur observed that the Chicago-based 7th Circuit Court of Appeals had in the past rejected sexual orientation discrimination claims under Title VII, which “would appear to bury” Matavka’s Title VII claim. But, he noted, Baldwin v. Foxx, while not binding on the court, may prompt a rethinking of this issue, and that the 7th Circuit heard oral argument on September 30 of a plaintiff’s appeal from a different federal trial judge’s dismissal of a sexual orientation discrimination claim in the case of Hively v. Ivy Tech Community College. “Should Hively follow recent district court decisions in finding Baldwin persuasive,” he wrote, “that finding plainly would affect the disposition of Morton High’s motion. That being so, the prudent course at present is to stay this matter pending the issuance of a decision in Hively.”
The 7th Circuit has not issued a decision in Hively as of this writing. Judge Shadur stayed a ruling on the motion until July 29, and said that if the 7th Circuit had not issued a ruling by then, he might stay it further.
The federal appeals courts are not bound by any rules about how soon after oral argument they must issue opinions. Sometimes the 7th Circuit moves quickly. During 2014 it took just a week after the August 26 oral argument to rule affirmatively on a marriage equality case on September 4, giving the states of Wisconsin and Indiana time to petition the Supreme Court for review before the start of the Court’s October term. The panel that heard the Hively argument has not ruled in more than eight months, suggesting that an extended internal discussion may be happening among the nine active judges of the 7th Circuit, to whom the panel’s proposed opinion would be circulated before it is released. Panels may not depart from circuit precedent, but a majority of the active judges on the circuit can overrule their past decisions. A 7th Circuit ruling reversing the district court’s dismissal of the Hively complaint would be a major breakthrough for Title VII coverage of sexual orientation claims.
Meanwhile, two decisions issued in June have taken opposite views on the question. In Brown v. Subway Sandwich Shop of Laurel, U.S. District Judge Keith Starrett of the Southern District of Mississippi bowed to prior 5th Circuit rulings rejecting sexual orientation claims under Title VII, and he even claimed, somewhat disingenuously, that the EEOC’s Baldwin decision did not support the plaintiff’s claim, stating that Baldwin “takes no position on the merits of the claim and resolves only timeliness and jurisdictional issues.” While this may appear to be technically true, since the EEOC was ruling on an appeal from the Transportation Department’s dismissal of the claim and not ultimately on the merits, on the other hand the EEOC definitely did take a “position” on the question whether sexual orientation discrimination claims are covered by Title VII; it had to address this question in order to determine that it had jurisdiction over the claim. The EEOC clearly stated in Baldwin that sexual orientation discrimination claims are “necessarily” sex discrimination claims.
By contrast, U.S. District Judge Mark E. Walker of the Northern District of Florida, finding that the 11th Circuit Court of Appeals has not issued a precedential ruling on the question, refused to dismiss a “perceived sexual orientation” discrimination claim in Winstead v. Lafayette County Board of County Commissioners on June 20. Pointing out that the 11th Circuit had ruled in 2011 in Glenn v. Brumby that a gender identity discrimination claim could be considered a sex discrimination claim under the Equal Protection Clause using a sex stereotyping theory, Judge Walker found that the Baldwin ruling, which also discussed sex stereotyping as a basis for a sexual orientation claim, was persuasive and should be followed.
Judge Walker rejected the argument made by some courts that using the stereotyping theory for this purpose was inappropriately “bootstrapping” claims of sexual orientation discrimination under Title VII. “These arguments seem to this Court to misapprehend the nature of animus towards people based on their sexual orientation, actual or perceived,” he wrote. “Such animus, whatever its origin, is at its core based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be ‘inappropriate’ for members of a certain sex or gender.”
He concluded: “This view – that discrimination on the basis of sexual orientation is necessarily discrimination based on gender or sex stereotypes, and is therefore sex discrimination – is persuasive to this Court, as it has been to numerous other courts and the EEOC.” He also contended that it “follows naturally from (though it is not compelled by) Brumby, which is binding Eleventh Circuit precedent. Simply put, to treat someone differently based on her attraction to women is necessary to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily discrimination on the basis of sex.”
Ironically, Judge Walker turned to an opinion written by the late Justice Antonin Scalia, an outspoken opponent of LGBT rights, to seal the deal. He quoted from Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services, a 1998 decision that same-sex harassment cases could be brought under Title VII. “No one doubts,” wrote Judge Walker, “that discrimination against people based on their sexual orientation was not ‘the principal evil Congress was concerned with when it enacted Title VII,’” quoting Scalia, and continuing the quote, “’But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’” Scalia was opposed to relying on “legislative history” to determine the meaning of statutes, instead insisting on focusing on the statutory language and giving words their “usual” meanings.
Judge Walker concluded that his decision not to dismiss the Title VII claim “does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that ‘in forbidding employers to discrimination against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,’” a quote from a 1971 court of appeals ruling that had been cited by the Supreme Court.
Judge Walker’s decision provides the most extended district court discussion of the merits of allowing sexual orientation discrimination claims under Title VII, but it will not be the last word, as the EEOC pushes forward with its affirmative agenda to litigate this issue in as many federal courts around the country as possible, building to a potential Supreme Court ruling. So far, the Supreme Court has refused to get involved with the ongoing debate about whether sexual orientation or gender identity discrimination claims are covered under Title VII. It refused to review the 11th Circuit’s decision in Glenn v. Brumby. But it can’t put things off much longer. An affirmative 7th Circuit ruling in Hively would create the kind of “circuit split” that usually prompts the Supreme Court to agree to review a case. That may not be long in coming.Tags: Baldwin v. Foxx, Brown v. Subway Sandwich Shop, Civil Rights Act of 1964, District Judge Mark Walker, District Judge Milton Shadur, District Judge Robert E. Payne, District Judge Sandra J. Feuerstein, District Juge Keith Starrett, EEOC, Equal Employment Opportunity Commission, gender identity discrimination as sex discrimination, Hinton v. Virginina Union University, Magnusson v. County of Suffolk, Matavka v. Board of Education, sex stereotyping, sexual orientation discrimination, sexual orientation discrimination as sex discrimination, Title VII, Winstead v. Lafayette County Board