The Equal Employment Opportunity Commission (EEOC) held for the first time in 2015 that allegations of discrimination based on sexual orientation constitute sex discrimination under Title VII. 

The EEOC reasoned that “sexual orientation is inherently a sex-based consideration,” and therefore, “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”  Since that time, at least three federal circuit courts of appeals have reached similar conclusions. 

In Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), the Seventh Circuit was the first federal court of appeals to hold sexual orientation discrimination falls within the protections of Title VII.  Kimberly Hively, the plaintiff in that case, is openly lesbian.  She applied for various promotions at her job, but did not receive any of them.  She was eventually terminated.  She then filed a claim for sex discrimination based on her sexual orientation.  The trial court, citing then binding precedent, dismissed the claim.  On appeal, the Seventh Circuit 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.”  In the Hively decision, the Seventh Circuit overruled prior Seventh Circuit precedent.

In Zarda v. Altitude Express, Inc., 883 F.3d 100, 107 (2d Cir. 2018), the Second Circuit also overruled prior circuit precedent when it held “Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of … sex.””  In that case, Donald Zarda, a gay man, filed a lawsuit claiming sex discrimination based on his sexual orientation.  Specifically, Zarda alleged he was fired from his job because he did not conform to the straight male macho stereotypes. 

Most recently, the Sixth Circuit held Title VII protections apply to discrimination on the basis of employee’s transgender status.  Equal Empl. Opportunity Commn. v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).  In that case, Amiee Stephens, who was formerly known as Anthony Stephens, claimed she was fired after she told her boss that she intended to transition from male to female and would represent herself and dress as a woman at work.  The employer raised various arguments, including an argument that employing and allowing the plaintiff to dress and present herself as a woman at work would cause a substantial burden on the employer’s sincerely held religious beliefs.  The Sixth Circuit rejected the argument and held the employer engaged in unlawful sex discrimination. 

For more information on this topic, contact our experienced Sioux Falls attorneys, Omaha attorneys, or Sioux City attorneys today!


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