We previously posted about a decision from the Northern District of Florida-Lafayette v. Winstead County-holding that Title VII of the Civil Rights Act of 1964 protected employees from discrimination based on sexual orientation. Our own Elizabeth White's article on courts' growing recognition of this new theory was also featured in this Spring's business edition of Best Lawyers Magazine. Since we wrote those two pieces, there have been some major shake-ups in this area of employment law.
Last month, a three-judge panel of the Eleventh Circuit-the federal appeals court whose decisions control in Florida, Georgia, and Alabama-rendered a decision holding that Title VII does not apply to sexual orientation discrimination. The decision is a departure from prior caselaw holding that discriminating against transgender employees violates the law as a form of "sex-stereotyping," i.e. treating employees differently because they do not conform to gender norms.
A concurrence written by Judge William Pryor emphasized that while some sexual-orientation discrimination could also be a form of sex-stereotyping, and thus actionable, not all such acts were. The difference, in his mind, hinged on whether the adverse treatment was because of "status" or "conduct."
Yesterday, the Seventh Circuit issued its own opinion-Hively v. Ivey Tech- holding that the law does prohibit discrimination based on sexual orientation. The Seventh Circuit's rationale is directly at odds with the reasoning of the Eleventh Circuit, and even disagreed with a panel decision ruling similarly; "our panel described the line between a gender nonconformity claim and one based on sexual orientation was gossamer-thin; we conclude that it does not exist at all." The court viewed sexual orientation discrimination as the "ultimate case" of mistreatment for failure to conform to gender stereotypes, since modern America views heterosexuality as the norm and other orientations as exceptional.
While the law controlling in Florida currently does not favor LGBT workers, the winds could change in several ways. First, a split between federal appellate courts will often make an issue more attractive for review by the Supreme Court. Second, the Eleventh Circuit may-like the Seventh Circuit did-decide to revisit the issue en banc, with the entire court. In any event, the monumental developments in defining LBGT workers' rights under the law are unlikely to stop here.