Two recent Circuit Court cases create a conflict among the Circuits on the question of whether sexual orientation or gender identity discrimination is a form of “sex discrimination.” While the 11th Circuit and most other Circuits holds that it is not (see Evans v. Georgia Regional Hospital, 850 F>3d 1248 (11th Cir. 2017)), the Second and Sixth Circuits have issued rulings to the contrary. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Zarda v. Altitude Express, Inc, 883 F.3d 100 (2d Cir. 2018). Both courts agree with the 7th Circuit’s holding in Hively v. Ivy Tech Cmty. College of Indiana, 853 F.3d 339 (7th Cir. 2017) (Title VII prohibits discrimination on the basis of sexual orientation).
Zarda holds that discrimination in employment on the basis of sexual orientation is both per se sex discrimination and a form of gender stereotyping. It is sex discrimination because the employer would not have engaged in the adverse action had the employee been of a different sex. Acting because a male employee is attracted to men rather than woman is sex discrimination because no action would have been taken had the employee been a woman; the sex of the employee is a but-for cause of the action. Sexual orientation discrimination is a form of gender-stereotyping because it assumes that men are attracted to and should be romantically attached only to women; since not all men fit in that mold, it is sex discrimination to act against an employee because they do not fit a preconceived idea about the way men should be and should act.
EEOC v. RG & GR Harris Funeral Homes, Inc. makes similar arguments in the context of an employee fired after telling her employer she was transitioning from male to female. The court found sex discrimination to be present based on the gender-stereotyping theory because the employer’s action was based on non-conformance of the employee’s gender identity and appearance with sex-based norms or expectations.
