Let’s Talk About [the Word] “Sex”: SCOTUS Declines Opportunity to Resolve Circuit Split on Title VII Meaning of “Sex”
January 8, 2018
Employers may not discriminate against employees based upon sex, race, color, national origin, and religion pursuant to Title VII of the Civil Rights Act of 1964. While once considered a straightforward term, federal appellate courts have struggled defining and shaping “sex” discrimination under Title VII since the 1980s.
2017 was no exception.
In 2017, three federal circuit courts considered whether Title VII’s definition of “sex” includes “sexual orientation.” The question elicited differing opinions, resulting in a new circuit split.
In April 2017, the Seventh Circuit became the first federal appellate court to extend Title VII protection to employees on the basis of sexual orientation or sexual preference. The majority reasoned that it “would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’” and it ultimately held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”
Just one month earlier however, in March 2017, the Eleventh Circuit declined to extend the same protection. The majority explained it was bound to follow 1979 precedent “unless and until it is overruled by this court en banc or by the Supreme Court.” The petitioner, a gay female named Jameka Evans who alleges she was terminated as a result of her sexual orientation, sought review from the United States Supreme Court, which denied certiorari on December 11, 2017.
What the public should take from the Supreme Court’s denial is unclear. It could be seen as a subtle affirmation of the Eleventh Circuit’s ultimate ruling. The Court could be leaving the issue in the hands of the Circuit Courts, most of which last considered this question in the 1990s and early 2000s. Or, the Court could be waiting for a more preferable case factually to resolve the question. Notably, the Court has also declined to address a separate circuit split regarding whether “sexual identity” and transgender individuals are afforded protection under Title VII.
Opponents of the expansion rely on statutory construction—the plain meaning of “sex” does not mean “sexual orientation” or “sexual preference”; it refers to traditional concepts of being a man or a woman. These courts also rely on Congressional intent, which they assert establishes that sex does not include sexual orientation. In fact, the protected class of “sex” was added just days before Title VII passed, and it was proposed by a Congressman who thought the addition would torpedo the Act entirely. Moreover, since Title VII’s passing, Congress has faced (and rejected) numerous proposals to amend Title VII to include sexual orientation.
Proponents point to the Equal Employment Opportunity Commission—the governing body that oversees employment discrimination matters—which announced in 2015 its position that “sex” as cited in Title VII encompasses sexual orientation (and sexual identity). Proponents further hold that as society’s definition of “sex” expands, so too should Title VII. They point to the United States’ long-held principle that individuals should not be discriminated against based upon the sex of whom they associate, a concept adopted from the Supreme Court’s holding in Loving v. Virginia.
Despite denying certiorari on Ms. Evans’s recent appeal from the Eleventh Circuit, 2018 may present another opportunity for the Supreme Court to comment and resolve this split. In September 2017, the Second Circuit heard oral arguments on this same issue. While the Second Circuit had not yet issued its opinion, there is a high likelihood that it will be appealed, regardless of the outcome.
As these concepts apply to employers, much is still up in the air. Employers that operate solely in Texas do not yet have to extend anti-discrimination efforts to sexual orientation because Texas courts (and the Fifth Circuit) do not consider sexual orientation to be a protected class. But, the EEOC has made it clear that sexual orientation is protected and employees may still file a complaint on that basis. Further, as of November 2017, about half of the states have enacted employment discrimination statutes that protect sexual orientation and sexual identity.
For those who employ individuals in states outside of Texas or within the Seventh Circuit, it is critically important to know whether sexual orientation is protected under Title VII or the state discrimination statute.