The courts have struggled with the wording in Title VII for a couple of decades. Title VII clearly prohibits discrimination based on sex. Does that mean Title VII prohibits discrimination based on sex orientation? If an employer terminate someone because he is gay, how is that not discrimination based on sex?

The challenge is that the legislative history expressly says Congress did not intend for Title VII to apply to homosexual persons. But, sex is sex, right? I wrote about this challenge here, when the Fifth Circuit recently declined to stray from the decision in Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Oncale allows a plaintiff to proceed with a claim based on gender stereotyping. But, gender stereotyping will not apply to cases of explicit homosexual discrimination. Last Fall, the U.S. Supreme Court accepted two cases addressing whether “sex” really means sex, Bostock v. Clayton County and Altitude Express v. Zarda. In both cases, the employers clearly fired two employees due to their sexual orientation. See SCOTUS blog for more information here.

Perhaps, the best argument the employers can make is that the plaintiff’s case is best addressed by Congress. But, until Congress addresses it, the “sex means sex” argument will continue to persist.

The courts have been struggling with the meaning of “sex” in Title VII for a couple of decades. Title VII prohibits discrimination based on “sex.” Does that include discrimination based on sexual orientation? In Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the court tried to walk a tightrope and found that stereotyping a person based on gender was prohibited by  Tile VII, while discrimination based on sexual orientation was not. The problem was that Title VII was passed in 1964. It is clear from the public record that Congress did not intend to protect homosexual persons from discrimination when it passed Title VII. But, society has changed. Now, most folks recognize some protection is needed. And, it just makes sense that “sex” means “sex,” not some forms of sex, while excluding other forms of sex based discrimination.

In Wittmer v. Phillips 66 Co., 2019 WL 458405 (5th Cir. 2/6/2019), the issue returns to the Fifth Circuit. The court chose to follow its precedent from 1979, Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) and hold that Title VII does not apply to sexual orientation. The Court noted that three courts of appeal have found that Title VII does protect discrimination based on sexual orientation. But, the court tried to avoid the subject by finding that the plaintiff did not make out a prima facie case of discrimination anyway. Even with this narrow holding, the panel of three judges produced two concurrences.

Judge Higginbotham concurred saying that the decision need not re-affirm the holding in Blum. Judge Ho wrote a much longer concurrence, arguing that we should look at the meaning of  “sex” in 1964, not what it might mean today. In Judge Ho’s view, “sex” in 1964 meant biologically female or male. To an average person in 1964, “sex” would not include sexual orientation. The judge asks the reader to return to the meaning of “sex” to its meaning in 1964. If Judge Ho relied on some evidence for his view that “sex” meant different things than it does today, he did not indicate what evidence that would be. His concurrence includes no actual evidence that the word has taken on a new meaning, today.

Judge Ho tries to apply “originalism” thinking to his opinion. But, in the end, there needs to be some evidence for his belief that the meaning of “sex” has changed since 1964. It seems to me he is trying too hard to reach a particular result. There is value in using “originalism” when looking at laws written 200 years ago. It has much less utility when the statue being discussed is just some 55 years old. See the decision here.

I written before about the complicated decisions regarding whether Title VII prohibits discrimination based on sexual orientation. Ever since the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), courts have been grappling with same sex harassment. Does Title VII prohibit discrimination based on sex or not? See my post here and here. The challenge for all judges is that Congress has considered amending Title VII to add protections based on sexual orientation, but ultimately has chosen not to do so. So, the court in Oncale tried to walk a fine line, determining that Title VII did prohibit harassment based on gender stereotypes, but not based on sexual orientation. So, as in Oncale, male on male harassment does violate Title VII so long as they harasser is not motivated by sexual interest.

But, the Seventh Circuit in Chicago appears to be prepared to upend that interpretation of Title VII. In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir.), many members of the en banc panel expressed misgivings about the current state of the law. Even the more conservative members of the panel shared concerns with precedent. See Slate post here about that en banc hearing. Title VII states plainly that it prohibits discrimination based on sex. If discrimination is based on sexual orientation, how is that not discrimination based on sex? Judges, left of center or right of center are inherently conservative. They much prefer to interpret the written law as it is written. It is increasingly difficult to ignore the wording of Title VII. It does, after all, prohibit discrimination based on sex.

The EEOC has already issued opinions supporting the view that Title VII prohibits discrimination based on sexual orientation. Courts are generally not far behind the EEOC. Even the well respected Judge Posner pointed out that statutory interpretation is not frozen in time. The Civil Rights Act of 1964, what we know as Title VII, was after all, passed in 1964. That was some time ago. Things have changed, pointed out Judge Posner. Judge Bauer, 90 years old, joined with Judge Posner to laugh at the outdated notion that lesbian women are a reaction to ugly men. You know when the judges are joking, the case is really already decided.

As noted at the end of the hearing, the Seventh Circuit is not a particularly liberal circuit. But, its judges tend to be thoughtful judges dedicated to a high standard of judicial scholarship. If they see the law certain way, one can expect them to adhere to their principles.

 Houston added gender identity and sexual orientation as protected classes to its anti-discrimination policies.  The policy prohibits discrimination, retaliation or harassment based on gender identity or sexual orientation in contracting, the City’s hiring practices and in City vending activities.  Houston, of course, just recently elected its first openly gay mayor.  See report.  

The San Antonio Fourth Court of Appeals recognized same sex harassment in certain limited situations.  See my prior post discussing the decision in Clark v. Alamo Heights Independent School District, No. 04-14-00746 (Tex.App. San Antonio 10/21/2015) here. The seminal case for same sex harassment is the U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In the Oncale case, the court made it clear that there case was really about gender stereotyping, not harassment based on sexual orientation.

The Texas Supreme Court has accepted an appeal regarding the Clark case. We will see if it threads the needle of harassment based on sex stereotypes, instead of harassment based on sexual orientation. The Clark case is based on a plea to jurisdiction. So, we assume the Texas Supreme Court will focus on the essential elements of such a case.

Many employers have started posting their employee polices online, and not in hard copy format. If so, they will run into the issue presented in Doe v. Columbia North Hills Hospital, 2017 WL 1089694 (Tex.App. Ft. Worth 3/23/2017). Jane Doe was sexually assaulted by a male co-worker. When she sued her former employer, it invoked an arbitration agreement to which she ostensibly agreed. But, Columbia Hospital did not issue a paper copy of the employee manual. It did not ask for physical, paper copy signatures of employees acknowledging receipt of the policies. Instead, it posted the policies online and told employees they must review the policies. The review was part of the Hospital’s orientation. It required the employee to acknowledge she had received “orientation” on problem solving and grievance procedures. But, nothing in the paper specifically mentioned arbitration.

The employer invoked arbitration. The employer won at arbitration. The employee then challenged the alleged arbitration agreement. The Ft. Worth Court of Appeals rightly noted that basic contract principles require that a party to an agreement understand the agreement. A person drafting the agreement, for example, cannot include a provision in the agreement that has type face so small that the other party cannot read it. The court found that the online positing of an arbitration agreement did not provide notice to the employee. The word “arbitration” was never used in any warning to employees asking them to review the online policies. The statement about “problem solving” and “grievance procedures” said nothing about arbitration. The court added that even if the Hospital had specifically pointed to an arbitration policy and said be sure to review it, that might not impose a duty on the part of the employee to read the arbitration policy – unless the employer specified the term of the arbitration agreement. Other courts reviewing online postings have reached a similar result.

The court noted a recent Supreme Court of Alabama decision that found an employee who could have accessed an online agreement was different than a person who actually did access an online agreement. Ms. Doe did not dispute she was warned to review the online policy about grievances. Instead, she claimed the Hospital never mentioned the arbitration policy and she never read the policy. See the decision here.