Courts wrestle with sexual orientation discrimination

The law of sex discrimination has long suffered under the problem of distinguishing between discrimination based on sex and discrimination based on sexual orientation.

Twenty-two states and the District of Columbia, as well as over one hundred municipalities, have laws prohibiting discrimination in the housing market on the basis of sexual orientation. Those jurisdictions include California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai‘i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Congress has so far refused to pass a statute prohibiting sexual orientation discrimination in housing, employment, and public accommodations.

 Federal fair housing law does not facially prohibit sexual orientation discrimination but it does prohibit discrimination on the basis of sex. So far courts have not accepted the argument that sexual orientation discrimination is a form of sex discrimination. Christiansen v. Omnicom Group, Inc., 2016 WL 951581 (S.D.N.Y. 2016) (citing Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) (“Title VII does not proscribe discrimination because of sexual orientation”). However, the Equal Employment Opportunity Commission (EEOC) has ruled that an employer engaged in sex discrimination if it refused to employ a person in a position because he was gay. Baldwin v. Foxx, EEOC OC 0120133080, 2015 WL 4397641 (E.E.O.C. 2015). The Supreme Court has also held that it is sex discrimination to refuse to promote a woman because she is too “masculine” or does not fit female gender stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). It would seem to be a gender stereotype to assume that men should only have male sexual partners or attraction. Moreover, refusing to rent an apartment to a white woman because her boyfriend is African-American is clearly race discrimination experience by the white woman.

The Seventh Circuit recently held that sexual orientation discrimination in employment is not prohibited by Title VII of the Civil Rights Act of 1964 even though that statute does prohibit discrimination based on gender stereotypes. Hively v. Ivy Tech Cmty. Coll., 2016 U.S. App. LEXIS 13746 (7th Cir. 2016). Feeling bound by its own precedent, the court refused to recognize sexual orientation discrimination as a kind of sex discrimination. At the same time, the court criticized its own reasoning and suggested that the distinction made no sense, praised the reasoning in Baldwin v. Foxx, and intimated that it would find sexual orientation to be a form of sex discrimination if it were not bound by its own precedent. The court noted, for example:

"Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do—for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men. In this way, almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender nonconformity." Id. at *19.