Over the past few years, however, there has been a groundswell of public support for recognizing civil rights protections for gay men and lesbians, exemplified, in particular, by the Supreme Court's decisions on same-sex marriage. The recent change in the interpretation of Title VII closely mirrors this broader societal shift.
In June 2013, in United States v. Windsor, the Supreme Court struck down as unconstitutional the definition of "marriage" under the Defense of Marriage Act, which had only recognized opposite-sex unions. Windsor was followed in early 2014 by Terveer v. Billington, the first district court decision to interpret Title VII to cover sexual orientation discrimination. Then in June 2015, the Supreme Court held in Obergefell v. Hodges that same-sex couples have a constitutionally protected right to marry. On the heels of Obergefell, the EEOC issued its federal sector decision in Baldwin v. Foxx, concluding for the first time since the agency had opened its doors in 1965 that Title VII prohibits sexual orientation discrimination. By the end of 2015, two district courts had adopted the EEOC's interpretation.
The cases as they stand . . . create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. . . . From an employee's perspective, the right to marriage might not feel like a real right if she can be fired for exercising it. Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, "You are a hard-working employee and have added much value to my company, but I am firing you because you are gay." And the employee would have no recourse whatsoever -- unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation. More than half of the United States, however, do not have such state protections . . . .Yet the recognition of a constitutional right cannot change the meaning of a statute enacted 50 years earlier, so despite acknowledging the existence of a "paradoxical legal landscape," the three-judge panel in Hively nevertheless concluded that Title VII does not prohibit sexual orientation discrimination.
In support of a rehearing by the full court, the EEOC contends that the panel's decision is out of step with the times. The EEOC cites not only the Supreme Court's recognition of same-sex marriage but also the Court's 2003 decision in Lawrence v. Texas overruling the 1986 Bowers v. Hardwick decision, which had upheld the constitutionality of state laws criminalizing same-sex sexual conduct. In Lawrence, the Court explained that "Bowers was not correct when it was decided, and it is not correct today."
If we view the longstanding rejection of sexual orientation claims under Title VII through the same lens that the Lawrence Court viewed Bowers, then the legal basis for rejecting those early interpretations becomes more apparent. It's not that the meaning of Title VII has changed recently, but that the earlier interpretations of the statute were incorrect.
Courts have long held that Title VII prohibits discrimination against an individual because he is married to someone of another race, so by extension, it would seem to follow that the statute also prohibits discrimination against someone because he is married to someone of the same sex. But prior to 2003, it was a crime in some states for gay men and lesbians to engage in intimate sexual conduct, even in the privacy of their homes. How then could Title VII have been interpreted to prohibit sexual orientation discrimination?
Given the broad societal shift in the perception of gay men and lesbians, courts are now free to revisit their old precedents rejecting claims of sexual orientation discrimination under Title VII, because, as with Bowers, those decisions arguably were wrong when they were decided and are wrong today.
In Hively, the Seventh Circuit vacated the panel decision and has agreed to have the entire bench take up the issue. There are also at least two other circuits in which the issue is pending, so it might only be a year or two before this issue reaches the Supreme Court.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.