January 9, 2018

Circuit Split on LGBTQ Laws Makes Title VII Supreme Court Case Ripe for 2018

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LGBTQ employees in the United States have become more and more visible in American society in the past few decades, but the legal issues surrounding their standing in the workplace is far from clear. While LGBTQ folks in states like California enjoy certain guarantees of recourse thanks to FEHA (Fair Employment and Housing Act) of 1992, there is still no analogous federal law in place.

This year, the Supreme Court may have to finally address this discrepancy. Various federal plaintiffs and appellants have asserted for years that Title VII of the Civil Rights Act of 1964 (banning sex discrimination) should also ban sexual orientation discrimination. Two cases—Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017) and Zarda v. Altitude Express No. 15-3775 (2d Cir. 2017) have produced conflicting interpretations of Title VII in 2017, making it ripe for Supreme Court cert.[1]

Title VII asserts that discrimination based on “race, color, religion, sex, or national origin […]” 42 U.S.C. § 2000e-2(a) is prohibited. The plaintiffs in Hively and Zarda premised their federal cases on the prohibition of “sex” discrimination.

In the Seventh Circuit, Hively, a community college teacher, had applied for multiple jobs and had been denied a promotion, and was ultimately fired for, according to her, discriminatory and prejudicial attitudes about her sexual orientation. An out lesbian, she felt her identity was the primary motivation for her termination.

The judges of the Seventh Circuit skirted the question of whether to add sexual orientation as a distinct category protected by Title VII. They instead asked whether, if Hively were a man, would she be treated differently for being in a relationship with a woman? The court asserted the following:

“Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. […] This describes paradigmatic sex discrimination.”

In no uncertain terms, the Second Circuit ruled the exact opposite in Zarda. Here, the court ruled that the plaintiff’s identity as a homosexual man did not constitute a sufficient basis for protection under Title VII’s sex discrimination protections. For this court, pink painted nails were insufficient “[…] to establish the requisite proximity between his termination and his proffered instances of gender non-conformity.”[2]


In contrast to the Seventh Circuit’s Hively decision, the Second Circuit ruled that Zarda’s homosexual dating habits were not considered a gender non-conforming activity and were not protected under federal law.

The circuit split makes the issue ripe for Supreme Court consideration. This dispute would provide interesting insight into rookie Supreme Court Justice Neil Gorsuch’s attitudes towards civil rights and LGBTQ issues.

While LGBTQ folks in California have strong protections against discrimination based on sexual orientation, many states have none. If the Supreme Court agrees with the Seventh Circuit, sexual orientation would be a protected category throughout the country. Practitioners, scholars, and businesses will be closely tracking developments.

[1] http://www.cnn.com/2017/09/26/politics/lgbt-employment-case/index.html

[2] https://law.justia.com/cases/federal/appellate-courts/ca2/15-3775/15-3775-2017-04-18.html