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Is Sexual Orientation Protected by Title VII?

Courts continue to disagree as to whether discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII of the Civil Rights of 1964, as amended (“Title VII”). In Boutillier v. Hartford Public School, No. 3:13-CV-01303-WWE, 2016 WL 6818348 (D. Conn. Nov. 17, 2016), the United States District Court for the District of Connecticut broke with precedent established by the United States Court of Appeals for the Second Circuit and held that discrimination based on sexual orientation is a form of sex discrimination that violates Title VII.

In Boutillier, the plaintiff brought several claims of discrimination, the details of which are beyond the scope of this post. The primary issue for purposes of this post was whether the court would recognize sexual orientation as a form of sex discrimination in violation of Title VII. The court examined the legislative intent of Title VII, the text of the statute, and the history of other court rulings to conclude that discrimination on the basis of sexual orientation is a prohibited form of sex discrimination under Title VII.

The district court opened its analysis by criticizing early interpretations of Title VII as having reached “illogical conclusions based on a supposed traditional concept of discrimination,” which resulted in the United States Supreme Court ruling that pregnancy was not discrimination on the basis of sex, a ruling that ultimately was overturned when Congress passed the Pregnancy Discrimination Act (“PDA”). The court commented that the Supreme Court’s decision holding pregnancy was not a form of sex discrimination was incorrect not because of “normative judgments” that prevail today, but because it “failed to take the ordinary meaning of the . . . text to its logical conclusion.”

The court then proceeded to examine legislative history, which was minimal. The court noted that, according to the Second Circuit, legislative history on this issue was “scant” because Congress had attempted to extend Title VII to protect sexual orientation several times. The court rejected this logic, commenting that the “failed efforts by Congress to explicitly include sexual orientation as a new, stand alone category of protected individuals under Title VII does not mandate the conclusion that sexual orientation based discrimination is not covered by the existing prohibition on sex based discrimination.” The district court further explained that “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex; the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination.”

The court then proceeded to examine certain judicial precedents that, according to the court, illustrated how sexual orientation is so intertwined with sex. First, the court discussed the Supreme Court decision in Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983), where the Supreme Court held that the employer’s insurance plan discriminated against male employees by providing less favorable pregnancy benefits to spouses of male employees than married female employees. The court noted that the Supreme Court’s analysis in Newport News shows that an employer may violate Title VII where the sex of the employee and his/her partner are considered.

Despite the Supreme Court’s analysis in Newport News, the district court in Boutillier acknowledged that Second Circuit precedent, Simonton v. Runyon, 232 F.3d 33 (2000), held that Title VII does not prohibit discrimination based on sexual orientation. The district court, however, noted that Second Circuit precedent since Simonton has recognized associational discrimination in the context of race discrimination violates Title VII ( Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008)). The court explained that in cases of associational discrimination involving race, an employee suffers adverse employment action because the employer disapproves of the employee’s interracial association, which necessarily means that the employer has discriminated based on the employee’s own race in that the adverse employment action would not have occurred if the employee had been of a different race. The same analysis applies in sexual orientation discrimination cases, according to the court in Boutillier.

Lastly, the court commented on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court held that sex stereotyping could constitute sex discrimination. The court in Boutillier was critical of the Second Circuit’s acknowledgement that stereotyping roles as inappropriate for a particular gender is a form of sex discrimination while it continued to refuse to apply sex stereotyping analyses to claims of discrimination based on sexual orientation. The court in Boutillier then noted that a recent decision by the United States Court of Appeals for the Seventh Circuit (written about here) detailed numerous inconsistent rulings among courts regarding the issue of whether sexual orientation discrimination is a form of sex discrimination prohibited by Title VII.

For all these reasons, the court in Boutillier concluded that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII. The decision in Boutillier further illustrates the judicial divide on this issue. Companies, at a minimum, should be aware of how courts in the jurisdictions where they operate address sexual orientation/gender identity discrimination claims under Title VII, particularly if the companies are not in jurisdictions or subject to other legislation that prohibits discrimination on the basis of sexual orientation/gender identity (e.g., state/local statute; Executive Order 13672, which amended Executive Order 11246). Even if companies operate in jurisdictions where courts continue to hold that sexual orientation/gender identity discrimination is not prohibited by Title VII, companies should be aware that some of those courts distinguish between claims under Title VII alleging discrimination based on sexual orientation/gender identity and discrimination based on gender non-conformity (as discussed in this post here).

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585.

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