To Protect or Not to Protect: An Empirical Approach to Predicting Where the Fourth Circuit Would Stand on Coverage for Sexual Orientation Discrimination Under Title VII
By
By
Mary Stuart King[1]*
It has been over 54 years since Congress passed the Civil Rights Act of 1964. The major movement for a civil rights bill began in 1963 when President Kennedy went to Congress twice with “urgent appeals regarding civil rights.”[2] Regarding employment discrimination, President Kennedy appealed to the “democratic principle that no man should be denied employment commensurate with his abilities because of his race or creed or ancestry.”[3] However, in both of President Kennedy’s appeals to Congress, he never mentioned “discrimination because of sex.”[4] Congress debated the bill for a total of 534 hours and made 500 amendments—at the time making it the longest debate in the Senate’s almost 180-year history.[5]
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment “because of . . . race, color, religion, sex, or national origin.”[6] Section 703 of Title VII does not expressly reference sexual orientation or gender. In fact, “‘sex’ was added only two days before the bill’s passage in the House, without prior hearing or debate, by an amendment offered by Representative Howard Smith, who opposed the civil rights bill but believed his amendment ‘[would] do some good for the minority sex.’”[7] Advocates of the Act as a whole “simply wanted a law to strengthen the government’s meager efforts to protect the rights of freed slaves after the Civil War”;[8] however, since then it has evolved into so much more.
Section 703 of Title VII has potential to evolve and expand coverage even further. This Note will predict how the Fourth Circuit would rule on a case involving sexual orientation discrimination in the workplace under the “because of . . . sex” language in the statute. For background, this Note will first cover the evolution and expansion of coverage of Section 703 of Title VII of the Civil Rights Act since it went into effect in 1964. Part II will review the establishment of protections under Title VII of “sex-plus” discrimination; sexual harassment which creates a hostile or abusive work environment; and gender or sexual stereotype discrimination. The Part III will review and analyze the circuit court split on recognition or exclusion of a claim of sex discrimination under Title VII. The analysis and methodology of the Second and Seventh Circuits—which recognize sexual orientation discrimination as a claim—will be discussed, as well as that of the Eleventh Circuit, which declined to recognize sexual orientation as a claim under Title VII. Part IV will provide opposing opinions in amicus curiae briefs from the United States Department of Justice—which opined that the Eleventh Circuit should not recognize sexual orientation discrimination claims—and the Equal Employment Opportunity Commission, which stated such claims should be recognized. Part V will analyze the ideology of the Fourth Circuit and compare this information to the decisions and ideology of the Second, Seventh, and Eleventh Circuit to make a conclusion on how the Fourth Circuit would rule on a case involving sexual orientation discrimination in the workplace. Next, this Part will analyze data collected from a survey of 655 Title VII cases that the Fourth Circuit heard from January 1, 2008 through December 31, 2018. The data will be used to predict how the Fourth Circuit would rule on a sexual orientation discrimination claim under Title VII based on how the court ruled on Title VII cases over the past ten years. Lastly, this Part will review previous Fourth Circuit cases that discussed sexual orientation discrimination as a claim under Title VII.
The purpose of this Note is not to provide an opinion on where the Fourth Circuit should come out on the issue. Rather, the goal is to provide an interesting glimpse into the current political ideology of the judges and to provide an idea of where the Fourth Circuit might fall on the issue based on an analysis of their past decisions and the current circuit split.
Today, a plaintiff alleging disparate treatment based on sex in violation of Title VII must show that he or she was discriminated against with “respect to his compensation, terms, conditions, or privileges of employment,” and that the employer discriminated “because of . . . sex.”[9] Over the years, courts have expanded what it means to be discriminated against “because of . . . sex,” and it no longer bears the simplistic meaning of discrimination based on having male or female anatomy. The Supreme Court in Oncale v. Sundowner Offshore Services, Inc.[10] stated that, “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[11] Evolving interpretations of Title VII by judges have added coverage for “sex-plus” discrimination, hostile work environment—which includes sexual harassment claims—and gender or sexual stereotype discrimination.
“The doctrine of ‘sex-plus’ discrimination eliminates the loophole in Title VII that allows employers to selectively hire members of a minority group.”[12] The sex-plus discrimination theory is supported by Title VII; however, it is never explicitly mentioned or referenced.[13] The doctrine was first established in 1971 in the Phillips v. Martin Marietta[14] case, and it occurs in primarily two situations:
(1) when an employer discriminates against employees on the basis of an immutable characteristic, such as race, age, and national origin; or (2) when an employer has one hiring policy for men and another for women, and the policy distinction is based on some fundamental right (e.g., the right to marry or the right to have children).[15]
The Phillips v. Martin Marietta case served as an illustrative example for the second situation, as the Court held that an employer may not deny employment to women with pre-school aged children without also denying employment to men with pre-school aged children.[16]
In 1986, the Supreme Court in Meritor Savings Bank v. Vinson[17] established that sexual harassment which creates a hostile or abusive work environment is a violation of Title VII.[18] Prior to 1986, courts had applied the concept of protection from harassment which created a hostile or abusive work environment to harassment based on race,[19] religion,[20] and national origin.[21] The Supreme Court explained that “[n]othing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited.”[22] However, the Supreme Court noted that not all harassment constitutes a Title VII violation and issued some guidelines for what behavior falls under Title VII prohibition.[23] The Court stated that the harassment must be “sufficiently severe or pervasive ‘to alter the conditions of . . . employment and create an abusive working environment.’”[24]
In Meritor Savings Bank, a female bank employee brought a sexual harassment suit against her employer and her supervisor.[25] The allegations included the fact that her boss had conditioned her employment on sexual favors and that her boss had been making sexual demands of her for years.[26] Vinson also claimed that her boss had raped her several times over the time of her employment.[27] The Supreme Court found that these claims were actionable under Title VII and rose to the level of sufficiently severe or pervasive.[28] This is the holding that established sexual harassment which creates a hostile or abusive work environment is a violation of Title VII.
In 1989, the Supreme Court in Price Waterhouse v. Hopkins[29] added protection for employees discriminated against according to their gender or sexual stereotype.[30] The Court held that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes—or failure to conform to gender norms—is cognizable under Title VII as discrimination because of sex.[31] In 1982, Ann Hopkins was working as a senior manager in an office of Price Waterhouse when she was recommended for partnership.[32] Instead of receiving an offer to join the partnership, Price Waterhouse held her candidacy for reconsideration for the next year; and when the partners in her office refused to propose her for partnership again, Hopkins sued Price Waterhouse under Title VII alleging that “the firm had discriminated against her on the basis of sex in its decisions regarding partnership.”[33] The most profound proof of discrimination came from statements of the Policy Board at Price Waterhouse, which explained why Hopkins’s partnership decision was placed on hold and advised Hopkins to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”[34] Justice Brennan, writing for the plurality, held that this was impermissible sex discrimination, and that “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”[35]
In spite of these major expansions over the years, the Supreme Court has yet to determine whether sexual orientation is covered under Title VII, and few circuit courts have attempted to address the issue. “Sexual orientation” is defined as “[a] person’s predisposition or inclination toward sexual activity or behavior with other males or females,” and is commonly categorized as “heterosexuality, homosexuality, or bisexuality.”[36]
The Second and Seventh Circuits have both recognized sexual orientation discrimination as a claim under § 703 of Title VII. However, the Second Circuit had to overrule two cases to arrive at that conclusion. This section of the Note will discuss the two Second Circuit cases that were overruled and the case that overruled them. It will also discuss the Seventh Circuit case that held sexual orientation discrimination is prohibited under Title VII. Since each case in the Second and Seventh Circuit asked whether an employee’s sex is necessarily a motivating factor in discrimination based on sexual orientation, the last paragraphs will delve deeper into the analysis and methodology used in the most recent Second Circuit case and the Seventh Circuit case by comparing and contrasting their opinions that lead to the same conclusion.
Before 2018, the Second Circuit did not recognize discrimination based on sexual orientation as a claim under Title VII. The court first expressed this opinion in 2000 through in Simonton v. Runyon.[37] The case was brought by Dwayne Simonton against the Postmaster General and the United States Postal Service under Title VII of the Civil Rights Act of 1964 for abuse and harassment he suffered due to his sexual orientation.[38] Simonton was employed as a postal worker in New York for approximately twelve years and “repeatedly received satisfactory to excellent performance evaluations.”[39] However, he was “subjected to an abusive and hostile work environment by reason of his sexual orientation.”[40] The facts of this case that discuss the incidents of Simonton’s abuse are particularly outrageous and appalling. The alleged harassment included repeated verbal assaults from his co-workers, “notes placed on the wall of the bathroom with Simonton’s name and the names of celebrities who had died of AIDS,” and pornographic or explicit and inappropriate materials taped to his work area, placed in his car, or sent to his home.[41] While the court noted that the “conduct allegedly engaged in by Simonton’s co-workers was morally reprehensible,” the court went on to state, “we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment.”[42]
The Second Circuit found that Simonton had “no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.”[43] The court first noted that it had “little legislative history to guide them in interpreting the Act’s prohibition against discrimination based on ‘sex.’”[44] However, it looked to the fact that “Congress has rejected a number of proposed amendments” based on sexual orientation as “strong evidence of congressional intent in the face of consistent judicial decisions refusing to interpret ‘sex’ to include sexual orientation.”[45] The Second Circuit primarily supported its decision based on precedent from its own circuit and the Supreme Court. In DeCintio v. Westchester County Medical Center, the Second Circuit held that the term “sex,” when read in the context of the other categories afforded protection under Title VII, refers only “to membership in a class delineated by gender, rather than sexual activity regardless of gender.”[46] When the court analyzed the Supreme Court’s decision in Oncale v. Sundowner Offshore Services Inc., the Second Circuit refused to interpret the case to mean that male harassment of other males always violates Title VII.[47] Instead, the Second Circuit stated that Oncale underscored that every victim of sexual harassment, whether the defendant and plaintiff are of the same or opposite sexes, “must demonstrate that he was harassed because he was male.”[48] Based on its analysis, the Second Circuit concluded that Title VII does not prohibit discrimination based on sexual orientation.[49]
The second case that demonstrates that the Second Circuit did not recognize discrimination based on sexual orientation as a claim under Title VII before 2018 is the Dawson v. Bumble & Bumble[50] case of 2005. In that case, the plaintiff, Dawn Dawson, who was a “self-described ‘lesbian female, who does not conform to gender norms . . .’ claim[ed] that she suffered discrimination on the basis of sex, sex stereotyping, and/or sexual orientation in violation of” Title VII.[51] This analysis will focus on any claims dealing with discrimination based on sexual orientation. The court stated very clearly that “to the extent that [the plaintiff] is alleging discrimination based upon her lesbianism, Dawson cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize homosexuals as a protected class.”[52]
Since discrimination based upon sexual orientation is not actionable under Title VII, the plaintiff “avail[ed] herself of the ‘gender stereotyping’ theory of Title VII liability according to which individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class.”[53] The issue with this theory when used by homosexual plaintiffs is that “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”[54] The court specifically noted that a “gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.”[55] One can fail to conform to gender stereotypes either through behavior or through appearance.[56] The plaintiff, Dawson, made “no assertion with respect to behavioral non-conformance.”[57] The court made a comparison to the Price Waterhouse case in stating that Dawson “was not told by anyone at Bumble & Bumble that her continued employment depended upon her acting and speaking in a more ‘feminine’ manner.”[58] Further, Dawson’s claim with respect to gender stereotyping based on appearance failed because the record was “devoid of any substantial evidence that [she] was subjected to any adverse employment consequences as a result of her appearance.”[59]
In 2018, the Second Circuit overruled Simonton and Dawson when the court in Zarda v. Altitude Express, Inc.[60] held that the plaintiff was entitled to bring a Title VII claim for discrimination based on sexual orientation.[61] Zarda, a gay former employee, “brought a sex discrimination claim under [Title VII] alleging that he was fired from his job at Altitude Express, Inc., because he failed to conform to male sex stereotypes by referring to his sexual orientation.”[62] Zarda worked as a skydiving instructor and regularly participated in tandem skydives.[63] Zarda’s co-workers frequently referenced his sexual orientation or made sexual jokes around clients, and even Zarda sometimes told female clients about his sexual orientation to resolve any uncomfortable feelings “they might have about being strapped to a man for a tandem skydive.”[64] In June 2010, Zarda was preparing for a tandem skydive when he told his female client that “he was gay and ha[d] an ex-husband to prove it.”[65] However, “the [female] client alleged that Zarda inappropriately touched her and disclosed his sexual orientation to excuse his behavior.”[66] After the jump was completed, the female client’s boyfriend told Zarda’s boss about the alleged inappropriate behavior and disclosure of his sexual orientation.[67] Even though Zarda denied inappropriately touching his client, his boss fired him, and he claimed his termination was prompted solely for his reference to his sexual orientation.[68]
Prior to bringing the lawsuit in federal court, Zarda filed a discrimination charge with the Equal Employment Opportunity Commission and “claimed that ‘[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex,’ but that he was fired because he ‘honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”[69]
The Second Circuit, hearing the case en banc, found that Zarda was entitled to bring a Title VII claim for discrimination based on sexual orientation because “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” for purposes of Title VII.[70] The court first supported this conclusion through their analysis on “sexual orientation as a function of sex,” which included a discussion on the nature of—and definition of—sexual orientation and its relation to sex.[71] The court concluded that sexual orientation is a function of sex because “one cannot fully define a person’s sexual orientation without identifying his or her sex.”[72]
Next, the Second Circuit used an approach called the “comparative test,” which is a test used by the Supreme Court for “determining whether an employment practice constitutes sex discrimination.”[73] The test determines “whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.”[74] The court concluded that “but for” Zarda’s sex being male his treatment would’ve been different because a female who is attracted to males would not have been discriminated against.[75]
The Second Circuit made a gender stereotyping analysis as its next argument in support of concluding that sexual orientation discrimination is a subset of sex discrimination. The court argued that gender stereotyping is deeply rooted in sexual orientation discrimination because “same-sex orientation ‘represents the ultimate case of failure to conform’ to gender stereotypes.”[76]
Lastly, the court applied the concept of associational discrimination to sexual orientation to support that it is a subset of sex discrimination. The court explained that in most contexts where an employer discriminates based on sexual orientation, the employer’s decision is primarily based on a negative opinion about the concept of a physical and romantic relationship between same sex individuals.[77] Therefore, “when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee’s own sex.”[78] The court concluded that these perspectives were sufficient to support the court’s holding and demonstrate that sexual orientation is a form of sex discrimination.[79]
Similar to the Second Circuit, the Seventh Circuit, en banc, also concluded that discrimination on the basis of sexual orientation is a form of sex discrimination, and therefore, such discrimination is prohibited by Title VII.[80] In Hively v. Ivy Tech Community College, Kimberly Hively brought an action against Ivy Tech Community College (“Ivy Tech”) alleging she was denied full-time employment and promotions based on sexual orientation in violation of Title VII.[81] Hively was an openly lesbian woman who began teaching as a part time, adjunct professor at Ivy Tech in 2000.[82] Between 2009 and 2014, Hively applied for at least six full-time positions and each time she was unsuccessful.[83] On December 13, 2013, Hively filed a charge with the Equal Opportunity Employment Commission.[84] Approximately seven months later, her part-time contract was not renewed.[85] After receiving her right-to-sue letter, she filed an action with the district court and appealed it up to the Seventh Circuit.[86]
The Seventh Circuit held that discrimination on the basis of sexual orientation constitutes sex discrimination for two major reasons. First, the court analyzed the case using the “comparative method,” where the test asks: whether holding all other things constant and changing only her sex, would she have been treated the same way?[87] The Seventh Circuit concluded that because a man in Hively’s position would not have faced discrimination, any discrimination Hively faced constituted “paradigmatic sex discrimination.”[88] The Seventh Circuit also supported this conclusion with a gender stereotype analysis. The analysis characterized the Court’s “gender non-conformity line of cases” as having established a form of discrimination based on sex stereotypes and Hively’s failure to adhere to heterosexual norms was the “ultimate case of failure to conform to the female stereotype.”[89]
Secondly, the court used the associational theory to support its conclusion.[90] The associational theory states that, “a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”[91] The court held that this also applies to discrimination on the basis of a person’s partner’s sex which amounts to discrimination on the basis of sex.[92]
The Seventh and Second Circuit used a majority of the same methods of analysis and theories to come to the same conclusion. Both courts utilized the comparative test, the associational discrimination theory, and definitional analysis to determine that discrimination based on sexual orientation is a subset of sex discrimination and is therefore covered under Title VII.[93]
The Zarda court stated that its conclusion that Zarda was entitled to bring a Title VII claim for discrimination based on sexual orientation is supported by the comparative test.[94] The comparative test is the “Supreme Court’s test for determining whether an employment practice constitutes sex discrimination.”[95] The test determines “whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different ‘but for that person’s sex.’”[96] The Seventh Circuit stated that it is “critical, in applying the comparative method, to be sure that only the variable of the plaintiff’s sex is allowed to change.”[97] To discover whether the complainant’s protected characteristic played a role in the adverse employment decision, the court must look at the situation and only change the sex of the complainant.[98] “In the comparison, the trait is the control, sex is the independent variable, and employee treatment is the dependent variable.”[99] If in that situation, the adverse employment decision would not have occurred, then the action qualifies as sex discrimination and the employer is disadvantaging the employee “because of sex.”[100]
The associational theory was first introduced in the Loving v. Commonwealth of Virginia decision in 1967, in which the Supreme Court held that “restricting the freedom to marry solely because of racial classifications violated the central meaning of the Equal Protection Clause.”[101] The associational theory established that “a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”[102]
The Zarda court applied the associational theory to sexual orientation as a protected class and explained that:
[I]n most contexts where an employer discriminates based on sexual orientation, the employer’s decision is predicated on opposition to romantic association between particular sexes. For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee’s own sex.[103]
Both circuits noted that the “prohibition on association discrimination applies with equal force to all the classes protected by Title VII, including sex,”[104] because “[t]he text of the statute draws no distinction, for this purpose, among the different varieties of discrimination it addresses.”[105]
Finally, both circuits also based their conclusion on a definitional analysis. When discussing the “nature of sexual orientation discrimination,” the Zarda court took into account the definitions of sexual orientation, heterosexuality, homosexuality, and bisexuality.[106] For example, the Second Circuit cited to Black’s Law Dictionary and stated that “homosexuality” is defined as “characterized by sexual desire for a person of the same sex.”[107] The court explained that to even “identify the sexual orientation of a particular person, we need to know the sex of the person and that of the people to whom he or she is attracted.”[108] The concurring opinion in Hively expressed a similar sentiment, stating that “[o]ne cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ [sex] . . . meaningless.”[109] The Zarda court specifically stated that “[b]ecause one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.”[110] The Zarda court went on to say that “sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.”[111] Therefore, the Zarda court concluded that sexual orientation is protected, it is a function of sex and sex is a protected class under Title VII.[112]
The Eleventh Circuit—in two recent high-profile decisions—has held that there can be no claim for sexual orientation discrimination under Section 703 of Title VII.[113] This section of the Note will discuss the Eleventh Circuit cases that concluded discrimination based on sexual orientation is not actionable under Title VII.
In Evans v. Georgia Regional Hospital,[114] the Eleventh Circuit held that discrimination based on sexual orientation is not actionable under Title VII.[115] However, the court did recognize plaintiff’s claim alleging discrimination based on gender non-conformity in violation of Title VII.[116] The court granted Evans leave to amend her complaint to provide more details to suggest that the alleged adverse employment actions were due to the fact that she presented herself in a masculine manner.[117]
In Evans’s complaint, she alleged the following facts, which the Eleventh Circuit accepted as true.[118] From August 2012 to October 2013, Evans worked as a security officer at Georgia Regional Hospital.[119] During her time of employment, Evans was “denied equal pay or work, harassed, and physically assaulted or battered.”[120] She was discriminated against at the hospital because of her sex and was terminated for failing to carry herself in a “traditional woman[ly] manner.”[121] Although Evans is a lesbian, she was not open about that fact, nor did she “broadcast her sexuality” in the workplace. “However, it was ‘evident’ that she identified with the male gender because of how she presented herself—‘(male uniform, low male haircut, shoes, etc.’).”[122] The court recognized that a discrimination claim based on gender non-conformity was actionable.[123] As in the Price Waterhouse case, this court stated that “[d]iscrimination based on failure to conform to a gender stereotype is sex-based discrimination.”[124]
More specifically, the court stated that in Glenn v. Brumby, the Eleventh Circuit “held that discrimination against a transgender individual because of gender non-conformity was sex discrimination.”[125] Further, “a gender non-conformity claim is not ‘just another way claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII.”[126] However, the court concluded that “Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”[127] On the gender non-conformity claim, the court granted Evans leave to amend her complaint as she was a pro se litigant and had not previously amended her complaint.[128]
In declining to recognize a claim of sexual orientation discrimination under Title VII, the court relied on binding precedent of the Blum v. Gulf Oil Corp case of 1979.[129] Blum expressly held that “[d]ischarge for homosexuality is not prohibited by Title VII.”[130] Further, the Evans court explicitly stated that despite the fact that claims for gender non-conformity and same sex discrimination may be brought under Title VII, that does not allow the court to abandon the longstanding precedent in Blum.[131]
The concurring opinion by Judge Pryor delves into further discussion on not recognizing sexual orientation under Title VII. Judge Pryor opined that a person who experiences discrimination because of sexual orientation and a person who experiences discrimination for deviating from gender stereotypes are two “legally distinct” concepts.[132] Judge Pryor stated that “[t]he unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a ‘triable case of gender stereotyping discrimination.’”[133]
In other words, sexual orientation discrimination does not always constitute gender stereotype discrimination. This led to Judge Pryor’s argument that the court does not afford relief based on status alone but must rest on the behavior.[134] This is the same argument that the Second Circuit used in the Dawson v. Bumble & Bumble case prior to overturning its decision in 2018.[135] Price Waterhouse and Glenn also concerned claims that an employee’s behavior, not status alone, deviated from a gender stereotype held by an employer.[136]
Following the court’s decision in Evans, the same issue reached the Eleventh Circuit one year later. In Bostock v. Clayton County,[137] the plaintiff, a gay male, alleged a claim of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.[138] Bostock began working for Clayton County as the Child Welfare Services Coordinator in mid-January, 2003, where he was primarily responsible for the Clayton County Court Appointed Special Advocate (CASA).[139] “During [Bostock’s] ten-year career with Clayton County, [he] received good performance evaluations and the program he managed received accolades.”[140]
In January of 2013, Bostock joined a gay recreational softball league and actively promoted CASA to his “league members as a good volunteer opportunity.”[141] In the following months, Bostock “allege[d] that his participation in the league and his sexual orientation and identity were openly criticized by one or more persons with significant influence on Clayton County’s decision-making.”[142] In April 2013, “Clayton County advised [Bostock] that it would be conducting an internal audit on the CASA program funds that he managed.”[143] Bostock argued that he did not—in any way shape or form—partake in any inappropriate conduct while he controlled the funds and that the audit was a clear “pretext for discrimination.”[144] In early June of 2013, Bostock was terminated, “allegedly for conduct unbecoming one of its employees.”[145] Bostock alleged “that this reason was pretext for discrimination based on his sexual orientation.”[146]
Bostock appealed the district court’s dismissal of his employment discrimination suit under Title VII of the Civil Rights Act of 1964, against Clayton County, Georgia, for failure to state a claim.[147] The Eleventh Circuit’s decision followed the precedent set by Blum and Evans.[148] The court stated that through Evans, Blum remains binding in the Eleventh Circuit.[149] In its per curiam opinion, the court stated, “In Evans, we specifically rejected the argument that Supreme Court precedent in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998), and Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989), supported a cause of action for sexual orientation discrimination under Title VII.”[150] The court concluded that “the district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because [the] holding in Evans foreclose[d] Bostock’s claim.”[151]
The Eleventh Circuit also ordered that Bostock’s case would not be reheard en banc.[152] Judge Robin S. Rosenbaum dissented from the denial of rehearing, arguing that the case was “en-banc-worthy” for a few reasons.[153] First, she stated that, recently, the Second and Seventh Circuits found the issue of “such extraordinary importance” that they have each addressed it en banc.[154] Second, Judge Rosenbaum recited data to display how many people are potentially affected by the issue.[155] Third, she continued to call the precedential value of Blum into question and referenced her dissent from the Evans case, where she explained why Price Waterhouse abrogated Blum.[156] Judge Rosebaum went so far as to call Blum “the precedential equivalent of an Edsel with a missing engine.”[157] She concluded with a call to action and stated that the Eleventh Circuit “should not sit idly by and leave victims of discrimination remediless by allowing Blum to continue to stand.”[158]
Bostock filed a petition for a writ of certiorari to the Supreme Court of the United States on May 25, 2018. Since then, the case has been distributed for conference fifteen times. On April 22, 2019, just prior to this Note’s publication, the Supreme Court granted Bostock’s petition.[159]
The Equal Employment Opportunity Commission (EEOC) filed its en banc brief of amicus curiae in the Zarda v. Altitude Express, Inc. case upon being asked by the Second Circuit.[160] Following the EEOC’s submission, the United States Department of Justice filed a competing amicus brief.[161]
In submitting an en banc brief of amicus curiae in Zarda v. Altitude Express, Inc. on June 23, 2017, the EEOC argued that Title VII prohibits discrimination on the basis of sexual orientation through its prohibition of discrimination “because of . . . sex.”[162] The EEOC advanced its opinion through three different methods or theories: the “because of sex” theory or what the Second Circuit calls the “comparative test”; the “associational theory”; and “sex stereotyping” theory, which was used in the Price Waterhouse gender discrimination case.[163] The EEOC also stated that the precedent of Simonton and Dawson should be overruled because the cases that Simonton relied on are largely no longer good law, and the distinction that Simonton and Dawson draw between “valid gender nonconformity claims and invalid sexual orientation claims is unworkable in practice and leads to absurd results.”[164] This last argument is no longer relevant because the Second Circuit overruled these precedents.
Not surprisingly, the EEOC’s analysis largely tracked the methodology of the Second and Seventh Circuits, discussed above. In describing the “because of sex” theory, the EEOC’s brief sounds familiar to the “comparative test” analysis accepted in the Second Circuit. If an employer treats an employee less favorably than it would treat a comparable employee who, aside from his or her sex, is identical in all respects (including the sex of that employee’s spouse), the employer discriminates against the employee “because of sex.”[165] The EEOC referred to this as Manhart’s “simple test of Title VII discrimination” because this test comes from the 1978 Supreme Court case City of Los Angeles, Department of Water and Power v. Manhart.[166] The case was a class action brought under Title VII that challenged the city department’s requirement that female employees make larger contributions to its pension fund than male employees.[167] The Manhart Court found that such a practice does not pass the simple test of whether the evidence shows “treatment of a person in a manner which but for that person’s sex would be different.”[168]
The EEOC noted that several courts have already applied Manhart’s simple test to hold that sexual orientation discrimination constitutes discrimination because of sex, including the Seventh Circuit, the Western District of Washington, the District of Oregon, and the Central District of California.[169] Within this analysis, the EEOC also made an argument very similar to that of the Hively court, which stated that “[o]ne cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ [sex] . . . meaningless.”[170] Each of the cases coming out of these district or circuit courts recognizes the same principle: “sexual orientation discrimination requires the employer to take the employee’s sex into account (in conjunction with the sex of that employee’s actual or desired partner).”[171]
The EEOC argued that sexual orientation discrimination also violates Title VII’s prohibition against sex discrimination because it treats individuals differently based on the sex of those with whom they associate.[172] The EEOC agreed with the Seventh Circuit’s conclusions about applying the associational theory—which was traditionally applied to race discrimination cases—to sex discrimination cases.[173] The brief cited to cases from the Second Circuit, Ninth Circuit, and Sixth Circuit to show that the standards for proving sex discrimination and race discrimination are the same.[174] Therefore, the EEOC argued, the associational theory can apply equally to discrimination based on sex, among others such as religion, color, or national origin.[175]
Lastly, the EEOC argued that sexual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because “they do not conform to the norm that men should be attracted only to women, and women only to men.”[176] The EEOC advanced this opinion through the “gender stereotyping” theory of Price Waterhouse.[177] The brief concluded on this argument that intentional discrimination on the basis of the gender of an individual’s actual or desired partners necessarily implicated stereotypes relating to “proper” sex-specific roles in relationships.[178]
After the EEOC submitted their amicus curiae brief in the Zarda v. Altitude Express, Inc. case, the United States Department of Justice filed a competing amicus brief. The United States’ amicus curiae brief concluded that Title VII does not prohibit discrimination because of sexual orientation.[179] The United States had two arguments of its own in addition to addressing the arguments advanced by the EEOC in its brief. The first argument stated that in order for Title VII to be violated, men and women must be treated unequally, and the second argument stated that discrimination because of sexual orientation is not discrimination because of sex under Title VII.[180]
The United States’ first argument, that Title VII’s bar against discrimination because of sex is not violated unless men and women are treated unequally, is supported by text from the Oncale opinion. The Oncale opinion stated that the “critical issue, Title VII’s text, indicates is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”[181] This argument seems to indicate that sexual orientation cannot be recognized under Title VII because it can be said in some cases that it is a lesbian woman being treated differently than a straight woman, or a gay man being treated differently from a straight man. The treatment in these cases are not differing between sexes, but between people of the same sex based on their sexual orientation.
In its second argument, the United States pointed to precedent and the fact that, until recently, the Courts of Appeals and the EEOC had agreed that Congress did not intend to recognize sexual orientation discrimination as a claim under Section 703 of Title VII.[182] Further, the United States argued that Congress has been given many opportunities to change the protections for sexual orientation under Title VII, and each time, Congress has affirmed and upheld the universally accepted legal conclusion that Title VII does not prohibit discrimination based on sexual orientation.[183]
The United States’ brief leads the reader through an analysis using the “interpretive principle” that “Congress is presumed to be aware of an administrative or judicial interpretative of a statute and to adopt that interpretation when it re-enacts a statute without change.”[184] The brief’s analysis of the principle mirrors the Supreme Court’s application of it in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.[185] First, Congress was certainly “‘aware of th[e] unanimous precedent’ of multiple Courts of Appeals holding that Title VII does not prohibit sexual orientation discrimination.”[186] By 1991, four Courts of Appeals, specifically the Fifth, Seventh, Eighth, and Ninth Circuits, had already made this decision.[187] Further, “when President Bush signed the 1991 Title VII amendments, there is no indication that he disagreed with the uniform view of the Courts of Appeals and the EEOC.”[188]
Second, “[a]gainst this background understanding,” Congress “amend[ed] [Title VII] while still adhering to the operative language.”[189] Congress proceeded to insert new additions to Title VII, which established the “methods and burdens of proof for sex discrimination claims,” and while these new provisions used the term “sex,” they did not include “sexual orientation within the definition of sex nor add[] it as an independently protected trait.”[190]
Third, “further ‘confirmation of Congress’ understanding’ exists in ‘the substance of the [1991] amendments.’”[191] The 1991 amendments supported the judicial decisions that had declined to recognize sexual orientation discrimination as a claim under Title VII while rescinding several other Title VII decisions that Congress believed had “sharply cut back on the scope and effectiveness of the statute.”[192] The United States argued that since Congress did not hesitate to revise other judicial interpretations of Title VII that it has “deemed unduly narrow,” “it is telling that Congress elected not to disturb the cases holding that Title VII does not bar sexual orientation discrimination.”[193] Finally, the 1991 Congress also denied a proposal for legislation that would have “expressly amended Title VII to [prohibit] discrimination based on ‘sex, affectional or sexual orientation.’”[194]
Since 1991, Congress has refused to enact any type of legislation that would forbid discrimination in employment due to one’s sexual orientation under Title VII.[195] The brief stated that “[s]uch ‘congressional silence after years of judicial interpretation supports adherence to the traditional view.’”[196] Furthermore, in several statutes other than Title VII, Congress has expressly prohibited sexual orientation discrimination, but the sexual orientation discrimination provisions are completely separate from those that prohibit sex discrimination.[197] In each of these statutes, Congress listed “sexual orientation” discrimination independent of “sex” or “gender” discrimination, rather than including it within “sex” discrimination.[198] This illustrates that “Congress considers ‘sexual orientation’ discrimination to be distinct from, rather than a subset of, ‘sex’ or ‘gender’ discrimination, and also that Congress knows how to cover ‘sexual orientation’ discrimination separately from ‘sex’ or ‘gender’ discrimination” when it decides to include it.[199] On this argument, the United States concluded that this is not a situation where “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”[200] “Congress was well aware of the distinct practice of sexual orientation discrimination” . . . when adopting Title VII’s ban on sex discrimination in 1964, and especially when amending it in 1991, “and chose not to ban it.”[201]
The United States concluded its brief by arguing against the theories advanced by the EEOC and the Seventh Circuit. The United States argued that the analysis by the EEOC and the Seventh Circuit of the “but for” test, or “comparative test,” for sex discrimination is incorrect for two reasons. First, the EEOC and the Seventh Circuit failed to hold everything else constant because their hypothetical changed both the employee’s sex (from male to female) and his sexual orientation (from gay to straight).[202] The United States argued that the “but-for” comparison rule “can’t do its job of ruling in sex discrimination as the actual reason for the employer’s decision if we’re not scrupulous about holding everything constant except the plaintiff’s sex.”[203] The brief stated that “the proper comparison would be to change the employee’s sex (from male to female) but to keep the sexual orientation constant (as gay).”[204] This hypothetical would satisfy Manhart’s “simple test,” because the “employee would be adversely affected regardless of sex (whether as a gay man or gay woman).”[205]
Second, the United States argued that even if the Seventh Circuit and EEOC were applying the “but-for” test correctly, that test is not utilized in establishing “disparate treatment of men and women” where an employer addresses circumstances where “the sexes are not similarly situated.”[206] The brief cited to other Courts of Appeals, such as the Fourth and Ninth Circuit, that have rejected the use of the “but-for” test advocated by the EEOC and Seventh Circuit majority outside the context of sexual orientation discrimination.[207] The United States concluded that “an employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex,” because gay men and gay women are treated the same.[208]
The United States also argued that the EEOC and the Seventh Circuit have committed two errors in applying the sex-stereotyping theory.[209] The EEOC and Seventh Circuit contended “that sexual orientation discrimination necessarily involves sex stereotyping because it allegedly targets an employee’s failure to conform to the gender norm of opposite-sex attraction.”[210] First, their analysis “erroneously presumes that sexual orientation discrimination always reflects a gender-based stereotype.”[211] To bring a sex-stereotyping claim like in Price Waterhouse, “an employee ‘must show that the employer actually relied on her [or his] gender in making its decision.’”[212] “[W]here an employer discriminates against a female employee solely because she is gay” (without regard to other characteristics that are not the norm for her sex), “it is not necessarily true that the employer has ‘actually relied on her gender in making its decision.’”[213] Second, the United States argued that even if sexual orientation discrimination can be considered gender-based stereotype, such discrimination is not the type of stereotype prohibited by Price Waterhouse.[214] Title VII prohibits “sex stereotypes” as long as that certain type of “sex-based consideration[]” causes “disparate treatment of men and women.”[215] “[T]he opposite-sex attraction ‘stereotype’ relied on by the EEOC and the Seventh Circuit majority does not result in disparate treatment of the sexes because men are treated no better or worse than similarly situated women.”[216] The United States concluded that “an employer who discriminates based on sexual orientation alone does not apply the sort of sex stereotype proscribed by Price Waterhouse,” because sexual orientation discrimination “applies to both sexes alike.”[217]
The United States argued that “Title VII prohibits an employer from discriminating against an employee in an interracial relationship, not because that constitutes ‘associational discrimination’” as the Seventh Circuit and EEOC argue, “but rather because that constitutes discrimination against the ‘individual employee because of such individual’s race.’”[218] Specifically, “the employer is treating an employee of one race differently from similarly situated employees of the partner’s race, solely because the employer deems the employee’s own race to be either inferior or superior to the partner’s race.”[219] In comparison, an employer who discriminates against an employee in a same-sex relationship is involved in “sex-neutral treatment of homosexual men and women alike,” instead of “sex-based treatment of women as inferior to similarly situated men, or vice versa.”[220]
The United States overall concluded that “the essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex,” and this element is missing from sexual orientation discrimination.[221] Further, this remains “a question for Congress to decide.”[222]
On May 29, 2018, Altitude Express, Inc. filed a petition for a writ of certiorari with the Supreme Court of the United States.[223] This petition was filed after a rehearing of the case, en banc, where the Second Circuit found for the plaintiff and held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” for purposes of Title VII.[224] Since the petition was filed, the case has been distributed for conference fourteen times. On April 22, 2019, just prior to this Note’s publication, the Supreme Court finally granted Altitude Express, Inc.’s petition for writ of certiorari.[225] This case is consolidated with Bostock v. Clayton County.
The political ideology of a court has an impact on the way the judges will rule on a given issue. This section will discuss the ideological history and current status of the Fourth Circuit to better predict how the judges would rule if presented with the issue of whether sexual orientation discrimination is a recognized claim under Title VII. Prior to 2010, the Fourth Circuit was one of the most conservative Courts of Appeals in the country.[226] However, the pipeline of President Obama’s successful nominees to the bench beginning in 2010 has shifted the court toward liberal ideologies.[227]
When George W. Bush was sworn in on January 20, 2001, there were four empty seats on the Fourth Circuit.[228] By the end of President Bush’s first term, the Fourth Circuit was known for its “conservative philosophy of law” and “conservative political agenda.”[229] However, by the time that President Bush’s presidency was coming to an end, it had the same political makeup as when he was elected president, with “six judges nominated by Republican presidents, five judges nominated by Democratic presidents, and four vacancies.”[230]
When Barack Obama assumed the office of the presidency on January 20, 2009, there were four vacancies to be filled on the Fourth Circuit Court of Appeals.[231] However, in July 2009, Judge Karen Williams suddenly retired due to illness and created a fifth vacancy on the bench.[232] By the end of Obama’s first term in office, he had remade the Fourth Circuit into a heavily Democratic court with six confirmed nominees.[233] This left the bench with “ten judges nominated by Democratic presidents and five nominated by Republican presidents.”[234]
A study done in 2015 compared outcomes from 2004, 2006, and 2008 with 2010 and 2012 for all of the Fourth Circuit’s labor and employment decisions.[235] Overall the results of the study showed a shift in the ideology of the Fourth Circuit toward the liberal end of the spectrum as President Obama’s nominees took their seats on the bench.[236] This shift resulted in a decrease in employer victories in cases appealed by employees to the Fourth Circuit.[237]
The current composition of the court has not changed much since President Obama’s time in office in terms of political ideology, with seven judges nominated by Republican presidents and eight judges nominated by Democratic presidents.[238] With the decrease in employer victories in cases appealed by employees to the Fourth Circuit, if a case on sexual orientation protection under Title VII were to reach the court in this way, it is possible that the Fourth Circuit would rule with the employee and recognize a claim for sexual orientation discrimination.
Further, by only looking at the ideology of the bench, if the court were to hear the case en banc, it is possible that the court would lean toward the more liberal side. However, by looking at the political ideologies of the judges on the Seventh, Second, and Eleventh Circuits, those ideologies do not appear to strongly indicate that a court with a majority of judges appointed by Republican presidents—or a court with a majority of judges appointed by Democratic presidents—would be more or less likely to recognize sexual orientation discrimination as a claim under Title VII. Both the Seventh and Second Circuit heard the Hively and Zarda cases, respectively, en banc and both courts recognized that the employee had a claim for sexual orientation discrimination under Title VII.[239] The Seventh Circuit has a Republican majority[240] and Hively was decided in a 8–3 decision.[241] However, Chief Judge Diane Wood, who was appointed by a Democratic president, wrote the majority opinion.[242] Further, all of the dissenting opinions from Hively are from judges appointed by a Republican president.[243] The Second Circuit has a Democratic majority and Zarda was decided in a 10–3 decision.[244] Two out of three of the dissenting opinions were authored by judges appointed by a Republican president, but the majority opinion was written by Chief Judge Robert Katzmann, who was appointed by a Democratic president.[245] Lastly, the Eleventh Circuit heard the Evans case in a panel of three judges where the court held that sexual orientation discrimination is not a recognizable claim under Title VII.[246] Judge Martinez is a United States District Judge of the United States District Court for the Southern District of Florida and sat by designation in the Evans case and wrote the majority opinion.[247] Judge Martinez was nominated by a Republican president.[248] Another judge nominated by a Republican president concurred in the opinion, while a Democratic president appointed judge dissented.[249]
Overall, there are more Republican appointed judges dissenting in decisions to recognize a claim for sexual orientation discrimination than Democratic appointed judges. The voting patterns and ideology of the Seventh, Second, and Eleventh Circuit appear to indicate that, individually, judges appointed by a Democratic president would be more likely—and judges appointed by a Republican president would be less likely—to recognize a sexual orientation discrimination claim under Title VII.[250] In terms of overall general political ideology, it is possible that the current Fourth Circuit would hold that sexual orientation discrimination is a valid claim under Title VII.
Presidents tend to appoint judges they believe share their ideological preferences. Whether a judge is perceived to be conservative or liberal does not always predict how he or she will rule from the bench, and it is not a guarantee, but the number of Democratic or Republican appointees is generally an indicator of a circuit’s conservative-liberal balance. This section will analyze data collected from a survey of 655 Title VII cases that the Fourth Circuit heard from January 1, 2008 through December 31, 2018. The data will be used to predict how the Fourth Circuit would rule on a sexual orientation discrimination claim under Title VII based on how the court ruled on Title VII cases over the past ten years.
A study by Brian S. Clarke concluded “that the overall judicial ideology of the Fourth Circuit has indeed shifted towards the ‘liberal’ end of the ideological spectrum as President Obama’s nominees have taken their seat on the court beginning in 2010,” at least in the labor and employment law realm.[251] However, specifically in Title VII employment discrimination cases, a survey of 208 cases displays that the ideology pendulum has not swayed too far from the conservative side.
This Author initiated a search on WestLaw to generate any Fourth Circuit case, published or unpublished, where an active Fourth Circuit judge was on the panel or sitting en banc, and the issues involved employment discrimination under Title VII.[252] The WestLaw search generated 655 results. Any cases that did not involve substantive Title VII claims and cases where the Fourth Circuit affirmed on the reasoning of the district court without any discussion of the substantive law were both removed. Data was collected from the 208 cases remaining. If there was a reversal of judgment for the employer, fully or on a majority of claims, or the court affirmed the judgment for the employee, fully or on a majority of claims, the case was categorized as “for employee/liberal.”[253] However, if there was a reversal of judgment for the employee, fully or on a majority of claims, or the court affirmed the judgment for the employer, fully or on a majority of claims, the case was categorized as “for employer/conservative.”[254]
Data was also collected for each judge on the panel for the case. If the judge joined or wrote the majority opinion, their vote for that case would be the same category as the case overall; however, if the judge dissented on a majority of claims, it would be the opposite. For example, if a judge joined the opinion on a “for employer/conservative” case, his vote would also be categorized as “for employer/conservative.” However, if the judge dissented on a majority of Title VII issues in that case, his vote would be considered “for employee/liberal.” Lastly, the “(D)” or “(R)” beside each judge’s name indicates whether they were appointed by a Democratic or Republican president, respectively.
Table 1: Ten Years of Title VII Fourth Circuit Rulings Categorized by Outcome and Ideology
| For Employer/Conservative | For Employee/Liberal |
| 158 | 50 |
Table 2: Ten Years of Title VII Currently Active Fourth Circuit Judge Votes Categorized by Outcome and Ideology[255]
| Judge | For Employer/Conservative | For Employee/Liberal |
| Agee (R) | 30 | 10 |
| Diaz (D) | 21 | 11 |
| Duncan (R) | 34 | 10 |
| Floyd (D) | 22 | 7 |
| Gregory (D) | 24 | 18 |
| Harris (D) | 12 | 7 |
| Keenan (D) | 22 | 12 |
| King (D) | 39 | 9 |
| Motz (D) | 34 | 9 |
| Niemeyer (R) | 36 | 6 |
| Thacker (D) | 14 | 4 |
| Wilkinson (R) | 45 | 7 |
| Wynn (D) | 27 | 10 |
| Quattlebaum (R) | 1 | 0 |
| Richardson (R) | 0 | 0 |
The data in Table 1 and Table 2 above lead to the conclusion that over the past ten years, regardless of the influx of judges nominated by President Obama, the Fourth Circuit is still a heavily conservative court when it comes to Title VII employment law cases. Even judges appointed by Democratic presidents voted “for employer/conservative” more than “for employee/liberal.” According to these results, if a sexual orientation discrimination claim under Title VII was presented to the Fourth Circuit en banc, the court would likely hold that sexual orientation discrimination is not protected under Title VII.
This section will discuss opinions that may serve as precedent for the Fourth Circuit. Two 1996 Fourth Circuit decisions explicitly state that Title VII does not prohibit sexual orientation discrimination; however, the cases are not actually about sexual orientation discrimination.[256] Both of the cases involve whether same-sex sexual harassment is actionable under Title VII because they both predate the Supreme Court decision in Oncale, which stated that same-sex sexual harassment can be actionable under Title VII.[257] Lastly, the section discusses a more recent case that cites to one of the Fourth Circuit cases from 1996, Wrightson v. Pizza Hut of America,[258] and a 2016 case on Title VII coverage, Finkle v. Howard County.[259]
The first case in the Fourth Circuit to explicitly state that Title VII does not prohibit sexual orientation discrimination was Hopkins v. Baltimore Gas & Electric Co.[260] The Hopkins opinion was decided by three judges who are still serving on the Fourth Circuit bench: Judge Niemeyer, Judge Wilkinson, and Senior Judge Hamilton.[261] The case concerned a former male employee who brought an action against his former employer under Title VII of the Civil Rights Act of 1964, alleging that his supervisor’s conduct created a sexually hostile work environment.[262]
To decide the issue of whether same-gender sexual harassment was prohibited under Title VII, Judge Niemeyer began with the applicable statutory language.[263] “Title VII prohibits ‘an employer’ from ‘discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.’”[264] The court noted that “[v]iewed in the abstract, a prohibition of “discrimination based on ‘sex’ is broad and perhaps even undefinable.”[265] In the abstract, the court stated, the word might also even be read to prohibit discrimination based on “human psychological and physiological characteristics or on sexual orientation.”[266] However, the Fourth Circuit concluded that, given Title VII’s history, it was clear that Congress did not intend “such sweeping regulation” and that “detached from their historical setting,” the terms of Title VII stand only as “inert language, lifeless words,” and even “playthings with which to reconstruct the Act.”[267]
To further support that Title VII should not be read to prohibit discrimination based on sexual orientation or all workplace sexual behavior, the Fourth Circuit examined Title VII’s legislative history. “Just two days before the House of Representatives passed Title VII, it adopted an amendment adding ‘sex’ as a prohibited basis for discrimination” because it would “do some good for the minority sex” by warranting that women would receive “as high compensation for their work as do the majority sex.”[268] Since the Act’s passage, it has been interpreted in a number of ways to expand its coverage; however, at this point, the Supreme Court had not “specifically addressed the question of whether the Act’s prohibitions apply when the harasser and the victim are the same sex.”[269]
The Fourth Circuit held that “same-gender harassment may be actionable under Title VII in appropriate circumstances.”[270] The court stated that “it is apparent from the historical record that Congress, in prohibiting sex discrimination, meant to prohibit discrimination only on the basis of the employee’s status as a man or woman, it is also clear from the statutory language itself, that only the sex of the employee is relevant in determining whether Title VII is implicated.”[271]
This decision clearly limits the interpretation of Title VII. The court stated, “It follows that in prohibiting sex discrimination solely on the basis of whether the employee is a man or a woman, Title VII does not reach discrimination based on other reasons,” such as conduct based on the employee’s sexual orientation.[272] Judge Niemeyer explicitly stated that, “Such conduct is aimed at the employee’s sexual orientation and not at the fact that the employee is a man or woman.”[273] It is clear, that at this time, the Fourth Circuit would not have agreed with the Seventh and Second Circuit—in fact, it would have held that Title VII does not prohibit discrimination because of sexual orientation.
The next Fourth Circuit case, Wrightson v. Pizza Hut of America, Inc., arose from a very similar set of facts as the Hopkins case. A male employee brought an action against his employer, alleging that his homosexual male supervisor and other homosexual male employees subjected him, as a heterosexual male, to “hostile work environment” sexual harassment that is prohibited under Title VII.[274] The Fourth Circuit, again, held that a claim under Title VII for same-sex “hostile work environment” harassment may be actionable where the perpetrator of the sexual harassment is homosexual.[275]
In Wrightson, the defendant contended that, even if there was a claim for same-sex harassment, Wrightson’s claim did not actually complain that he was harassed because of his sex, but rather, because of his sexual orientation as a heterosexual.[276] The court stated that Wrightson did not allege that he was discriminated against because of his sexual orientation, because his complaint specifically alleged that he was discriminated against “because of his sex, male.”[277] However, the court did agree with the defendant that “Title VII does not afford a cause of action for discrimination based upon sexual orientation.”[278]
In a 2015 case, Murray v. N.C. Dep’t. of Public Safety,[279] the plaintiff “allege[d] that he overheard a supervisor and co-worker gossiping about another co-worker’s sexual orientation, that he complained about this gossip,” and that following his complaints, the “supervisor and co-worker retaliated against him by creating a hostile and unsafe work environment.”[280] The district court held that the plaintiff failed to state a claim under Title VII because a one-time comment about a co-worker’s sexual orientation is inadequate to establish an actual hostile workplace, and the situation did not fall under Title VII retaliation protection.[281] The plaintiff appealed the district court’s order dismissing his case for a failure to state a claim in his complaint alleging retaliation under Title VII.[282] The Fourth Circuit affirmed the district court’s order after finding no reversible error.[283] In its decision, the Fourth Circuit cited to Wrightson v. Pizza Hut of America., Inc. and included in the citation’s parenthetical “recognizing that Title VII does not protect against sexual orientation discrimination.”[284]
In the most recent case regarding Title VII coverage, the Fourth Circuit Court of Appeals “declined to address the coverage issue in a Title VII claim brought by a transgender employee.”[285] The case was decided in March of 2016 in an unpublished opinion. In Finkle v. Howard County, the plaintiff sued under Title VII alleging that she was not hired for a police job because she is a transgender female.[286] The plaintiff alleged that the “failure to hire constituted sex discrimination under Title VII” but did not assert the sex stereotyping theory used in cases such as Price Waterhouse v. Hopkins.[287] The court did not even address whether her claim was included under Title VII, but rather “rejected her contentions based on the weight of the evidence presented.”[288] The court stated that the evidence of bias was only a single remark made in a memorandum, which was issued months before the hiring decision.[289] Further, “the plaintiff could not demonstrate that the business reasons provided by the employer for failure to hire were pretext of discrimination.”[290] “The Fourth Circuit also noted that the defendant never challenged the plaintiff’s ability to sue for sex discrimination based on transgender status, and therefore the court did not address this issue.”[291]
Based on the statements from Hopkins and Wrightson, it is unlikely the Fourth Circuit would recognize a claim for sexual orientation discrimination under Title VII. If the Fourth Circuit heard a case en banc, it is highly possible that the judges will see these cases as strong persuasive evidence that Title VII does not provide protection for sexual orientation discrimination. However, the court now has many more arguments to consider that were raised in current cases from the Second, Seventh, and Eleventh circuits that may sway them in another direction. However, the Finkel case illustrates that the Fourth Circuit is not willing to make such a landmark decision—either way—unless the case provides adequate evidence.
Overall, the Fourth Circuit is not likely to recognize a claim for sexual orientation discrimination under Section 703 of Title VII. Even though comparing the political ideology of the Fourth Circuit to the Second, Seventh, and Eleventh Circuit revealed that Democratic judges are more likely to recognize such a claim, looking closely at how the active Fourth Circuit judges have ruled over the past ten years in Title VII cases showed that every single judge—regardless of political ideology or presidential appointment—voted for the “for employer/conservative” more times than “for employee/liberal.” Further, two cases from the Fourth Circuit explicitly state that sexual orientation discrimination is not a recognizable claim under Title VII, and other circuits have even cited the Wrightson case in denying recognition of a claim for sexual orientation discrimination under Title VII.[292] However, the Finkel case illustrates that the Fourth Circuit is not willing to make such a landmark decision—either way—unless the case provides adequate evidence. If the Fourth Circuit receives a case with adequate evidence on the subject and were to have a hearing en banc, the Fourth Circuit would likely not recognize sexual orientation discrimination as a claim under Section 703 of Title VII.
Appendix I
Table I: Seventh Circuit Political Ideology Split in Hively v. Ivy Tech Community College of Indiana
| Majority | Concurring | Dissenting | |
| Republican Appointed Judge | 3 | 3 | 3 |
| Democrat Appointed Judge | 2 | 0 | 0 |
Table II: Second Circuit Political Ideology Split in Zarda v. Altitude Express, Inc.
| Majority | Concurring | Dissenting | |
| Republicans Appointed Judge | 1 | 1 | 2 |
| Democrat Appointed Judge | 5 | 3 | 1 |
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