There are now two camps when it comes to whether Title VII prohibits discrimination based solely on sexual orientation. In one camp, the EEOC and, most recently, the Seventh Circuit say discrimination on the basis of sexual orientation is sex discrimination for Title VII purposes. The other camp, including the Sixth Circuit, in which Tennessee resides, and the Fourth Circuit, in which Virginia resides, says it is not.
In December 2016, the Sixth Circuit held in Clemons v. City of Memphis that Title VII did not prohibit claims based solely on sexual orientation. However, the Sixth Circuit’s decision in Vickers v. Fairfield Medical Center still stands, which held that although claims based on sexual orientation were not actionable, claims based on sex stereotyping are. A sex stereotyping claim requires a plaintiff to show he or she was being discriminated against because of a gender non-conforming behavior that is observable at work. The Vickers’ precedent originated from the 1989 Supreme Court Case Price Waterhouse v. Hopkins, which involved a female associate who was denied partner because, inter alia, she did not walk and talk femininely enough.
For years, plaintiffs have tried to bootstrap discrimination actions based on sexual orientation into Title VII by claiming discrimination based on sex stereotyping. Courts have consistently denied those claims. A plaintiff was finally successful. On April 4, 2017, the Seventh Circuit held in Hively v. Ivy Tech Community College that Title VII does prohibit discrimination based on sexual orientation.
Tennessee and Virginia law do not prohibit discrimination based on sexual orientation. And although the Seventh Circuit’s decision in Hively is not binding on the Fourth or Sixth Circuits, it may be an indication of a future shift in the law. Whether or not the Fourth and Sixth Circuits hold in the future that Title VII prohibits discrimination based on sexual orientation, employers should have policies in place to prevent discrimination or effectively rectify the issue should it arise.