In a bit of a surprise move, the U.S. Supreme Court today passed on an opportunity to provide some long-awaited clarity on the interplay between sexual orientation and Title VII of the Civil Rights Act of 1964. In Evans v. Georgia Regional Hospital, Case No. 17-370 (2017), the high court declined to hear Ms. Evans’ appeal, essentially closing the door on her claim and leaving intact a prior appellate court ruling that prevents employees in the Eleventh Circuit from pursuing a claim of sexual orientation discrimination against an employer.

Background

A few background points and a few distinctions are important. Title VII prohibits employment discrimination because of “sex,” but does not expressly define that word. Nor does the act expressly mention sexual orientation. Employees have often argued that the word “sex” should be interpreted as including sexual orientation, but most courts that have examined that argument have held that Congress did not intend for the distinct concept of sexual orientation to be included in the landmark civil rights bill in 1964. Civil rights groups have often responded to that state of interpretation by proposing various bills to amend Title VII to expressly include sexual orientation and/or gender identity, but to date, none of those efforts have met with success. While a few courts have recognized claims under Title VII for stereotyping individuals into traditional gender roles, claims that often apply to gay, lesbian or transgender employees, the courts have not gone so far as to apply Title VII to sexual orientation directly.

Recent developments

But late in 2016, the issue somewhat suddenly appeared to be up for reinterpretation. The Equal Employment Opportunity Commission, whom Congress has tasked with drafting regulations interpreting Title VII, took the position that the courts have been wrong. The agency announced that in all future cases, the EEOC would argue that “sexual orientation” discrimination is prohibited by Title VII via its ban on “sex” discrimination, and no amendment to Title VII is necessary to make those claims actionable. While the EEOC is entitled to take that position, the previous court decisions make the agency’s position fairly symbolic in nature; only the courts can determine if a claim is actionable under the law, and the EEOC’s opinion on the matter is only advisory in nature. However, other decisions by the same courts indicated that the issue of civil rights for gay, lesbian and transgender individuals was gaining political steam.

In 2017, one appellate court finally embraced that trend and reexamined the legal theory. In Hively v. Ivy Tech Community College, Case No. 15-1720, (7th Cir. 2017), the U.S. Court of Appeals for the Seventh Circuit held, for the first time, that a claim of discrimination by an employee based solely on his or her sexual orientation could be maintained under Title VII. Essentially, the appellate court reinterpreted the word “sex” in Title VII and decided that changing moral beliefs of the country justified a different interpretation of Title VII, now more than 50 years old. Furthermore, in September of 2017, the U.S. Court of Appeals for the Second Circuit held a rare en banc hearing in a similar case, signaling that it may be destined for a similar ruling.

To be sure, however, other courts have stayed the course, ignoring the EEOC and the apparent societal trend. Those courts have noted that an early 1960’s Congress clearly did not intend for sexual orientation to be covered by the law, and that the proper venue for changing an act of Congress is Congress itself. One of those courts was the U.S. Court of Appeals for the Eleventh Circuit. In Evans, the court held, as it had in all prior cases, that “there is no sexual orientation action under Title VII.” Evans appealed that case to the U.S. Supreme Court. The stark differences in treatment of this issue by the various courts of appeals, coupled with the Supreme Court’s prior intervention in civil rights matters involving sexual orientation, made this case a very likely candidate for Supreme Court intervention. A decision by the Supreme Court would have decided the matter once and for all.

The Evans appeal and its effects

But it was not be. While the denial of this particular appeal means that the issue isn’t to be decided now, it does not mean the issue will not be decided. The justices may deny an appeal for any number of reasons, and this case may simply have not been the cleanest case upon which to decide this key issue. But it will be decided, perhaps sooner rather than later. And the trend appears to be for courts to reexamine their prior holdings in accordance with the new EEOC commentary. For now, for clients that request guidance on the issue, we continue to counsel that employers should treat sexual orientation and gender identity as protected characteristics under the law. For those few that decide to proceed under current interpretations of law in their respective districts, we remind them to consult state and local laws, as well as contract provisions (especially federal contracts and subcontracts) for other sources of law that may impose prohibitions on discrimination.