In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1720
KIMBERLY HIVELY,
Plaintiff‐Appellant,
v.
IVY TECH COMMUNITY COLLEGE, South Bend,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14‐cv‐1791 — Rudy Lozano, Judge.
____________________
ARGUED SEPTEMBER 30, 2015 — DECIDED JULY 28, 2016
____________________
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Once again this court is asked to
consider whether Title VII of the Civil Rights Act of 1964
protects employees from or offers redress for discrimination
based on sexual orientation. This time, however, we do so in
the shadow of a criticism from the Equal Employment Op‐
portunity Commission (EEOC) that this court and others
have continued to reflexively declare that sexual orientation
is not cognizable under Title VII without due analysis or
2 No. 15‐1720
consideration of intervening case law. The EEOC’s criticism
has created a groundswell of questions about the rationale
for denying sexual orientation claims while allowing nearly
indistinguishable gender non‐conformity claims, which
courts have long recognized as a form of sex‐based discrimi‐
nation under Title VII. After a careful analysis of our prece‐
dent, however, this court must conclude that Kimberly Hive‐
ly has failed to state a claim under Title VII for sex discrimi‐
nation; her claim is solely for sexual orientation discrimina‐
tion which is beyond the scope of the statute. Consequently,
we affirm the decision of the district court.
I.
Hively began teaching as a part‐time adjunct professor at
Ivy Tech Community College in 2000. On December 13,
2013, she filed a bare bones pro se charge with the Equal
Employment Opportunity Commission (EEOC) claiming
that she had been “discriminated against on the basis of sex‐
ual orientation” as she had been “blocked from fulltime [sic]
employment without just cause,” in violation of Title VII.
(Short Appendix to Appellant’s Brief, 5). After exhausting
the procedural requirements in the EEOC, she filed a com‐
plaint, again pro se, in the district court alleging that alt‐
hough she had the necessary qualifications for full‐time em‐
ployment and had never received a negative evaluation, the
college refused even to interview her for any of the six full‐
time positions for which she applied between 2009 and 2014,
and her part‐time employment contract was not renewed in
July 2014. In short, she alleged that she had been “[d]enied
full time employment and promotions based on sexual ori‐
entation” in violation of Title VII, 42 U.S.C. §§ 2000e et seq.
No. 15‐1720 3
The college’s defense in both the district court and on
appeal is simply that Title VII does not apply to claims of
sexual orientation discrimination and therefore Hively has
made a claim for which there is no legal remedy. The district
court agreed and granted Ivy Tech’s motion to dismiss. Hive‐
ly v. Ivy Tech Cmty. Coll., No. 3:14‐CV‐1791, 2015 WL 926015,
at *1 (N.D. Ind. Mar. 3, 2015).
II.
A.
This panel could make short shrift of its task and affirm
the district court opinion by referencing two cases (released
two months apart), in which this court held that Title VII of‐
fers no protection from nor remedies for sexual orientation
discrimination. Hamner v. St. Vincent Hosp. & Health Care Ctr.,
Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor
Co., 231 F.3d 1080, 1085 (7th Cir. 2000). Title VII makes it
“unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual … because of such indi‐
vidual’s race, color, religion, sex, or national origin”
42 U.S.C. § 2000e‐2. This circuit, however, in both Hamner
and Spearman, made clear that “harassment based solely up‐
on a person’s sexual preference or orientation (and not on
one’s sex) is not an unlawful employment practice under Ti‐
tle VII.” Hamner, 224 F.3d at 704; Spearman, 231 F.3d at 1084
(same). Both Hamner and Spearman relied upon our 1984
holding in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th
Cir. 1984) in which this court, while considering the Title VII
claim of a transsexual airline pilot, stated in dicta that “ho‐
mosexuals and transvestites do not enjoy Title VII protec‐
tion.” Id. at 1084. In Ulane, we came to this conclusion by
4 No. 15‐1720
considering the ordinary meaning of the word “sex” in Title
VII, as enacted by Congress, and by determining that “[t]he
phrase in Title VII prohibiting discrimination based on sex,
in its plain meaning, implies that it is unlawful to discrimi‐
nate against women because they are women and against
men because they are men.” Id. at 1085. We also considered
the legislative history of Title VII, explaining that it was pri‐
marily meant to remedy racial discrimination, with sex dis‐
crimination thrown in at the final hour in an attempt to
thwart adoption of the Civil Rights Act as a whole. Id. There‐
fore, we concluded, “Congress had a narrow view of sex in
mind when it passed the Civil Rights Act.” Id. at 1086. In a
later case describing Ulane, we said that at the time of Ulane
“we were confident that Congress had nothing more than
the traditional notion of ‘sex’ in mind when it voted to out‐
law sex discrimination, and that discrimination on the basis
of sexual orientation and transsexualism, for example, did
not fall within the purview of Title VII.” Doe by Doe v. City of
Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997) (citing Ulane,
742 F.2d at 1085–86), abrogated by Oncale v. Sundowner Off‐
shore Servs., Inc., 523 U.S. 75 (1998).1
Since Hamner and Spearman, our circuit has, without ex‐
ception, relied on those precedents to hold that the Title VII
prohibition on discrimination based on “sex” extends only to
discrimination based on a person’s gender, and not that
aimed at a person’s sexual orientation. Muhammad v. Cater‐
pillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014) (citing the hold‐
ing in Spearman, 231 F.3d at 1085); Hamm v. Weyauwega Milk
1 See footnote 2 for an explanation of the abrogation by Oncale.
No. 15‐1720 5
Products, Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) (“The pro‐
tections of Title VII have not been extended, however, to
permit claims of harassment based on an individual’s sexual
orientation.”); Schroeder v. Hamilton Sch. Dist., 282 F.3d 946,
951 (7th Cir. 2002) (“Title VII does not, however, provide for
a private right of action based on sexual orientation discrim‐
ination.”).
The district court, relying on Hamner and two district
court cases, thus dismissed Hively’s complaint with preju‐
dice. Hively, 2015 WL 926015, at *3 (citing Hamner, 224 F.3d
at 704 (“harassment based solely upon a person’s sexual
preference or orientation … is not an unlawful employment
practice under Title VII.”); Wright v. Porters Restoration, Inc.,
No. 2:09‐CV‐163‐PRC, 2010 WL 2559877, at *4 (N.D. Ind.
June 23, 2010) (“To the extent the Plaintiff may be alleging
discrimination based on sexual orientation, the Seventh Cir‐
cuit has unequivocally held that this type of discrimination
is not, under any circumstances, proscribed by Title VII.”);
and Hamzah v. Woodmans Food Mkt. Inc., No. 13‐CV‐491‐
WMC, 2014 WL 1207428, at *2 (W.D. Wis. Mar. 24, 2014)
(“[t]o the extent [plaintiff] claims harassment due to his het‐
erosexuality—that is, his sexual orientation, not his sex—he
cannot bring a Title VII claim against [the defendant] for
these alleged instances of harassment, and the court will
dismiss that claim with prejudice.”)).
We are presumptively bound by our own precedent in
Hamner, Spearman, Muhammad, Hamm, Schroeder, and Ulane.
“Principles of stare decisis require that we give considerable
weight to prior decisions of this court unless and until they
have been overruled or undermined by the decisions of a
higher court, or other supervening developments, such as a
6 No. 15‐1720
statutory overruling.” Santos v. United States, 461 F.3d 886,
891 (7th Cir. 2006). Our precedent has been unequivocal in
holding that Title VII does not redress sexual orientation
discrimination. That holding is in line with all other circuit
courts to have decided or opined about the matter. See e.g.,
Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006)
(perceived sexual orientation and sexual harassment claim);
Medina v. Income Support Div., New Mexico, 413 F.3d 1131,
1135 (10th Cir. 2005); Bibby v. Phila. Coca Cola Bottling Co.,
260 F.3d 257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d
33, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 259 (1st Cir. 1999); Hopkins v. Balt. Gas & Elec.
Co., 77 F.3d 745, 751‐52 (4th Cir. 1996) (noting in a case of
same‐sex harassment that Title VII does not protect against
discrimination based on sexual orientation); U.S. Depʹt of
Hous. & Urban Dev. v. Fed. Labor Relations Auth., 964 F.2d 1, 2
(D.C. Cir. 1992) (assuming without deciding that Title VII
does not cover sexual orientation discrimination); Williamson
v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989);
Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); but
see Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th
Cir. 2002) (gay male employee taunted and harassed by co‐
workers for having feminine traits successfully pleaded
claim of sex harassment under Title VII).
Our holdings and those of other courts reflect the fact
that despite multiple efforts, Congress has repeatedly reject‐
ed legislation that would have extended Title VII to cover
sexual orientation.2 Moreover, Congress has not acted to
2 Employment Non‐Discrimination Act of 1994, H.R. 4636, 103rd Cong.
(1994); Employment Non‐Discrimination Act of 1994, S. 2238, 103rd
No. 15‐1720 7
amend Title VII even in the face of an abundance of judicial
opinions recognizing an emerging consensus that sexual ori‐
entation in the workplace can no longer be tolerated. See, e.g.,
Vickers, 453 F.3d at 764‐65 (“While the harassment alleged by
[the plaintiff] reflects conduct that is socially unacceptable
and repugnant to workplace standards of proper treatment
and civility, [the plaintiff’s] claim does not fit within the
Cong. (1994); Employment Non‐Discrimination Act of 1995, H.R. 1863,
104th Cong. (1995); Employment Non‐Discrimination Act of 1995, S. 932,
104th Cong. (1995); Employment Non‐Discrimination Act of 1996,
S. 2056, 104th Cong. (1995); Employment Non‐Discrimination Act of
1997, H.R. 1858, 105th Cong. (1997); Employment Non‐Discrimination
Act of 1997, S. 869, 105th Cong. (1997); Employment Non‐Discrimination
Act of 1999, H.R. 2355, 106th Cong. (1999); Employment Non‐
Discrimination Act of 1999, S. 1276, 106th Cong. (1999); Employment
Non‐Discrimination Act of 2001, H.R. 2692, 107th Cong. (2001); Protect‐
ing Civil Rights for all Americans Act of 2001, S. 19, 107th Cong. (2001);
Employment Non‐Discrimination Act of 2002, S. 1284, 107th Cong.
(2002); Equal Rights and Equal Dignity for Americans Act of 2003, S. 16,
108th Cong. (2003); Employment Non‐Discrimination Act of 2003, H.R.
3285, 108th Cong. (2003); Employment Non‐Discrimination Act of 2003,
S. 1705, 108th Cong. (2003); Employment Non‐Discrimination Act of
2007, H.R. 2015, 110th Cong. (2007); Employment Non‐Discrimination
Act of 2007, H.R. 3685, 110th Cong. (2007); Employment Non‐
Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009); Employment
Non‐Discrimination Act of 2009, H.R. 2981, 111th Cong. (2009); Em‐
ployment Non‐Discrimination Act of 2009, S. 1584, 111th Cong. (2009);
Employment Non‐Discrimination Act of 2011, H.R. 1397, 112th Cong.
(2011); Employment Non‐Discrimination Act of 2011, S. 811, 112th Cong.
(2011); Employment Non‐Discrimination Act of 2013, H.R. 1755, 113th
Cong. (2013); Employment Non‐Discrimination Act of 2013, S. 815, 113th
Cong. (2013); see also Ulane, 742 F.2d at 1085–86 (listing the many failed
attempts to amend Title VII to add “sexual orientation” between 1975
and 1982).
8 No. 15‐1720
prohibitions of the law); Bibby, 260 F.3d at 265 (“Harassment
on the basis of sexual orientation has no place in our society.
Congress has not yet seen fit, however, to provide protection
against such harassment.”); Simonton, 232 F.3d at 35 (har‐
assment on the basis of sexual orientation “is morally repre‐
hensible whenever and in whatever context it occurs, partic‐
ularly in the modern workplace” but “Congress’s refusal to
expand the reach of Title VII is strong evidence of congres‐
sional intent in the face of consistent judicial decisions refus‐
ing to interpret “sex” to include sexual orientation.”); Hig‐
gins, 194 F.3d at 259 (harassment because of sexual orienta‐
tion “is a noxious practice, deserving of censure and oppro‐
brium” but not proscribed by Title VII); Rene, 243 F.3d at
1209, (Hug, J., dissenting) (same); Kay v. Indep. Blue Cross,
142 F. App’x 48, 51 (3d Cir. 2005) (finding sexual orientation
discrimination to be “reprehensible” but not actionable un‐
der Title VII); Silva v. Sifflard, No. 99‐1499, 2000 WL 525573,
*1 (1st Cir. Apr. 24, 2000) (“Although we do not condone
harassment on the basis of perceived sexual orientation, it is
not, without more, actionable under Title VII.”); Christiansen
v. Omnicom Grp., Inc., No. 15 CIV. 3440, 2016 WL 951581, at
*12 (S.D.N.Y. Mar. 9, 2016) (finding the conduct “reprehensi‐
ble,” but not cognizable under Title VII). See also Ulane,
742 F.2d at 1084 (“While we do not condone discrimination
in any form, we are constrained to hold that Title VII does
not protect transsexuals, and that the district court’s order
on this count therefore must be reversed for lack of jurisdic‐
tion.”). In short, Congress’ failure to act to amend Title VII to
include sexual orientation is not from want of knowledge of
the problem. And as a result, our understanding in Ulane
that Congress intended a very narrow reading of the term
No. 15‐1720 9
“sex” when it passed Title VII of the Civil Rights Act, so far,
appears to be correct.
To overcome a motion to dismiss, Hively’s complaint
must contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In this case, Hively fails to
thwart the motion to dismiss for the simple reason that this
circuit has undeniably declared that claims for sexual orien‐
tation are not cognizable under Title VII. Nor are they, with‐
out more, cognizable as claims for sex discrimination under
the same statute.
B.
We could end the discussion there, but we would be re‐
miss not to consider the EEOC’s recent decision in which it
concluded that “sexual orientation is inherently a ‘sex‐based
consideration,’ and an allegation of discrimination based on
sexual orientation is necessarily an allegation of sex discrim‐
ination under Title VII.” Baldwin v. Foxx, EEOC Appeal No.
0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015). The
EEOC, the body charged with enforcing Title VII, came to
this conclusion for three primary reasons. First, it concluded
that “sexual orientation discrimination is sex discrimination
because it necessarily entails treating an employee less fa‐
vorably because of the employee’s sex.” Id. at *5 (proffering
the example of a woman who is suspended for placing a
photo of her female spouse on her desk, and a man who fac‐
es no consequences for the same act). Second, it explained
that “sexual orientation discrimination is also sex discrimi‐
nation because it is associational discrimination on the basis
of sex,” in which an employer discriminates against lesbian,
gay, or bisexual employees based on who they date or mar‐
10 No. 15‐1720
ry. Id. at *6‐7. Finally, the EEOC described sexual orientation
discrimination as a form of discrimination based on gender
stereotypes in which employees are harassed or punished
for failing to live up to societal norms about appropriate
masculine and feminine behaviors, mannerisms, and ap‐
pearances. Id. In coming to these conclusions, the EEOC not‐
ed critically that “courts have attempted to distinguish dis‐
crimination based on sexual orientation from discrimination
based on sex, even while noting that the “borders [between
the two classes] are … imprecise.” Id. at *8 (quoting Simon‐
ton, 232 F.3d at 35). The EEOC rejected the argument that the
plain language of Title VII, along with Congressional inac‐
tion, mandated a conclusion that Title VII does not prohibit
such discrimination. Instead, the EEOC noted that even the
Supreme Court, when applying Title VII’s prohibition on
“sex” discrimination to same‐sex sexual harassment, stated
that “statutory prohibitions often go beyond the principal
evil to cover reasonably comparable evils, and it is ultimate‐
ly the provisions of our laws rather than the principal con‐
cerns of our legislators by which we are governed.” Oncale,
523 U.S. at 79.
This July 2015 EEOC decision is significant in several
ways. It marks the first time that the EEOC has issued a rul‐
ing stating that claims for sexual orientation discrimination
are indeed cognizable under Title VII as a form of sex dis‐
crimination. Although the holding in Baldwin applies only to
federal government employees, its reasoning would be ap‐
plicable in private employment contexts too. And although
the rulings of the EEOC are not binding on this court, they
are entitled to some level of deference. Griggs v. Duke Power
Co., 401 U.S. 424, 433‐34 (1971); Gibson v. Brown, 137 F.3d 992,
995‐96 (7th Cir. 1998), vacated, W. v. Gibson, 527 U.S. 212
No. 15‐1720 11
(1999). Based on our holding today, which is counter to the
EEOC’s holding in Baldwin, we need not delve into a discus‐
sion of the level of deference we owe to the EEOC’s rulings.
Whatever deference we might owe to the EEOC’s adjudica‐
tions, we conclude for the reasons that follow, that Title VII,
as it stands, does not reach discrimination based on sexual
orientation. Although we affirm our prior precedents on this
point, we do so acknowledging that other federal courts are
taking heed of the reasoning behind the EEOC decision in
Baldwin. As we will discuss further below, the district courts,
which are the front line experimenters in the laboratories of
difficult legal questions, are beginning to question the doc‐
trinaire distinction between gender non‐conformity discrim‐
ination and sexual orientation discrimination and coming up
short on rational answers.
In the process of concluding, after thorough analysis, that
allegations of discrimination on the basis of sexual orienta‐
tion necessarily state a claim of discrimination on the basis of
sex, the EEOC criticized courts—and pointed particularly to
this circuit—that “simply cite earlier and dated decisions
without any additional analysis” even in light of the relevant
intervening Supreme Court law. Baldwin, 2015 WL 4397641,
at *8 n.11. We take to heart the EEOC’s criticism of our cir‐
cuit’s lack of recent analysis on the issue. Moreover, recent
legal developments and changing workplace norms require
a fresh look at the issue of sexual orientation discrimination
under Title VII. We begin, therefore, with that intervening
Supreme Court case— Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989)—and discuss its implication for distinguish‐
ing between gender non‐conformity claims, which are cog‐
nizable under Title VII, and sexual orientation claims, which
are not. See Hamm, 332 F.3d at 1065 n.5.
12 No. 15‐1720
C.
As far back as 1989, the Supreme Court declared that Ti‐
tle VII protects employees who fail to comply with typical
gender stereotypes. Price Waterhouse, 490 at 251. In Price Wa‐
terhouse, when Ann Hopkins failed to make partner in the
defendant accounting firm, the partners conducting her re‐
view advised her that her chances could be improved the
next time around if she would, among other gender‐based
suggestions, “walk more femininely, talk more femininely,
dress more femininely, wear make‐up, have her hair styled,
and wear jewelry.” Id. at 235. The Supreme Court declared
that this type of gender stereotyping constituted discrimina‐
tion on the basis of sex in violation of Title VII, stating,
[a]s for the legal relevance of sex stereotyping,
we are beyond the day when an employer
could evaluate employees by assuming or in‐
sisting that they matched the stereotype asso‐
ciated with their group, for in forbidding em‐
ployers to discriminate against individuals be‐
cause of their sex, Congress intended to strike
at the entire spectrum of disparate treatment of
men and women resulting from sex stereo‐
types.
Id. at 251 (internal citations omitted).
The holding in Price Waterhouse has allowed many em‐
ployees to marshal successfully the power of Title VII to
state a claim for sex discrimination when they have been
discriminated against for failing to live up to various gender
norms. See, e.g., City of Belleville, 119 F.3d at 580, 582 (finding
that a worker who wore an earring and was habitually called
No. 15‐1720 13
“fag” or “queer” made a sufficient allegation of gender‐
based discrimination to defeat a motion for summary judg‐
ment);3 Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir.
2000) (“the evidence suggests the employer here may have
relied on impermissible stereotypes of how women should
behave” by criticizing plaintiff’s deficient interpersonal skills
while tolerating the same deficiencies in male employees.).
As a result of Price Waterhouse, a line of cases emerged in
which courts began to recognize claims from gay, lesbian,
bisexual, and transgender employees who framed their Title
VII sex discrimination claims in terms of discrimination
based on gender non‐conformity (which we also refer to, in‐
terchangeably, as sex stereotype discrimination) and not
sexual orientation. But these claims tended to be successful
only if those employees could carefully cull out the gender
non‐conformity discrimination from the sexual orientation
discrimination. See Hamm, 332 F.3d at 1065 (upholding the
grant of summary judgment in the employer’s favor because
the plaintiff “himself characterizes the harassment of his
peers in terms of … his sexual orientation and does not link
their comments to his sex.”). When trying to separate the
discrimination based on sexual orientation from that based
3 The Supreme Court’s decision in Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75 (1998), nominally abrogated the decision in City of Belle‐
ville, but nothing in the Supreme Court’s decision in Oncale called into
question this circuit’s holding regarding gender stereotypes and applica‐
tion of the Price Waterhouse holding. See Bibby, 260 F.3d at 263 n.5 (“Ab‐
sent an explicit statement from the Supreme Court that it is turning its
back on Price Waterhouse, there is no reason to believe that the remand in
City of Belleville was intended to call its gender stereotypes holding into
question.”).
14 No. 15‐1720
on sex stereotyping, however, courts soon learned that the
distinction was elusive. Prowel v. Wise Bus. Forms, Inc.,
579 F.3d 285, 291 (3d Cir. 2009) (“the line between sexual ori‐
entation discrimination and discrimination ‘because of sex’
can be difficult to draw.”); Dawson v. Bumble & Bumble,
398 F.3d 211, 217 (2d Cir. 2005) (“it is often difficult to dis‐
cern when [the plaintiff] is alleging that the various adverse
employment actions allegedly visited upon her by [her em‐
ployer] were motivated by animus toward her gender, her
appearance, her sexual orientation, or some combination of
these” because “the borders [between these classes] are so
imprecise.”); Centola v. Potter, 183 F. Supp. 2d 403, 408
(D. Mass. 2002) (“the line between discrimination because of
sexual orientation and discrimination because of sex is hard‐
ly clear.”); Hamm, 332 F.3d at 1065 n.5 (“We recognize that
distinguishing between failure to adhere to sex stereotypes
(a sexual stereotyping claim permissible under Title VII) and
discrimination based on sexual orientation (a claim not cov‐
ered by Title VII) may be difficult. This is especially true in
cases in which a perception of homosexuality itself may re‐
sult from an impression of nonconformance with sexual ste‐
reotypes.”); Id. at 1067 (Posner, J., concurring) (“Hostility to
effeminate men and to homosexual men, or to masculine
women and to lesbians, will often be indistinguishable as a
practical matter.”).
And so for the last quarter century since Price Waterhouse,
courts have been haphazardly, and with limited success, try‐
ing to figure out how to draw the line between gender norm
discrimination, which can form the basis of a legal claim un‐
der Price Waterhouse’s interpretation of Title VII, and sexual
orientation discrimination, which is not cognizable under
Title VII. As one scholar has stated, “The challenge facing
No. 15‐1720 15
the lower courts since Price Waterhouse is finding a way to
protect against the entire spectrum of gender stereotyping
while scrupulously not protecting against the stereotype that
people should be attracted only to those of the opposite
gender.” Brian Soucek, Perceived Homosexuals: Looking Gay
Enough for Title VII, 63 AM. U. L. REV. 715, 726 (2014). As we
will describe below, courts have gone about this task in dif‐
ferent ways—either by disallowing any claims where sexual
orientation and gender non‐conformity are intertwined,
(and, for some courts, by not allowing claims from lesbian,
gay, or bisexual employees at all), or by trying to tease apart
the two claims and focusing only on the gender stereotype
allegations. In both methods, the opinions tend to turn cir‐
cles around themselves because, in fact, it is exceptionally
difficult to distinguish between these two types of claims.
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 rela‐
tionships only with men. In this way, almost all discrimina‐
tion on the basis of sexual orientation can be traced back to
some form of discrimination on the basis of gender non‐
conformity. Gay men face discrimination if they fail to meet
expected gender norms by dressing in a manner considered
too effeminate for men, by displaying stereotypical feminine
mannerisms and behaviors, by having stereotypically femi‐
nine interests, or failing to meet the stereotypes of the rough
and tumble man. Co‐workers and employers discriminate
against lesbian women for displaying the parallel stereotypi‐
cal male characteristics. But even if those employees display
16 No. 15‐1720
no physical or cosmetic signs of their sexual orientation, les‐
bian women and gay men nevertheless fail to conform to
gender norm expectations in their attractions to partners of
the same sex. Lesbian women and gay men upend our gen‐
der paradigms by their very status—causing us to question
and casting into doubt antiquated and anachronistic ideas
about what roles men and women should play in their rela‐
tionships. Who is dominant and who is submissive? Who is
charged with earning a living and who makes a home? Who
is a father and who a mother? In this way the roots of sexual
orientation discrimination and gender discrimination wrap
around each other inextricably. In response to the new
EEOC decision, one court has bluntly declared that the lines
are not merely blurry, but are, in fact, un‐definable. See
Videckis v. Pepperdine Univ., No. CV1500298, 2015 WL
8916764, at *6 (C.D. Cal. Dec. 15, 2015) (“Simply put, the line
between sex discrimination and sexual orientation discrimi‐
nation is ‘difficult to draw’ because that line does not exist,
save as a lingering and faulty judicial construct.”) Whether
the line is nonexistent or merely exceedingly difficult to find,
it is certainly true that the attempt to draw and observe a
line between the two types of discrimination results in a
jumble of inconsistent precedents.
For example, some courts attempting to differentiate be‐
tween actions which constitute discrimination on the basis of
sexual orientation and those which constitute discrimination
on the basis of gender non‐conformity essentially throw out
the baby with the bathwater. For those courts, if the lines be‐
tween the two are not easily discernible, the right answer is
to forego any effort to tease apart the two claims and simply
dismiss the claim under the premise that “a gender stereo‐
typing claim should not be used to bootstrap protection for
No. 15‐1720 17
sexual orientation into Title VII.” See, e.g., Dawson, 398 F.3d
at 218 (citing Simonton, 232 F.3d at 38). In Dawson, a lesbian
hair salon assistant alleged that she was discriminated
against because she did not conform to feminine stereotypes
and because she was gay. Id. at 217. The court expressed
concern that the plaintiff had “significantly conflated her
claims,” and because the court could not discern whether the
allegedly discriminatory acts were motivated by animus to‐
ward her gender or her sexual orientation, it deemed the acts
beyond the scope of Title VII and upheld the motion for
summary judgment in the salon’s favor. Id. Several other
courts likewise have thrown up their hands at the muddled
lines between sexual orientation and gender non‐conformity
claims and simply have disallowed what they deem to be
“bootstrapping” of sexual orientation claims onto gender
stereotyping claims. For example, in Vickers, 453 F.3d at 764,
the Sixth Circuit upheld the dismissal of a gender noncon‐
formity claim brought by an employee whose co‐workers
perceived him to be gay, because recognition of that claim
would have the effect of de facto amending Ti‐
tle VII to encompass sexual orientation as a
prohibited basis for discrimination. In all like‐
lihood, any discrimination based on sexual ori‐
entation would be actionable under a sex ste‐
reotyping theory if this claim is allowed to
stand, as all homosexuals, by definition, fail to
conform to traditional gender norms in their
sexual practices.
Id. See also, Simonton, 232 F.3d at 38 (noting that the Price Wa‐
terhouse theory could not allow plaintiffs to “bootstrap pro‐
tection for sexual orientation into Title VII because not all
18 No. 15‐1720
homosexual men are stereotypically feminine, and not all
heterosexual men are stereotypically masculine.”); Spearman,
231 F.3d at 1085‐86 (ignoring the plaintiff’s claim that he was
discriminated against because his co‐workers perceived him
to be too feminine to fit into the male image of the company,
and finding instead that the discriminatory comments were
directed solely at the plaintiff’s sexual orientation); Magnus‐
son v. Cty. of Suffolk, No. 14CV3449, 2016 WL 2889002, at *8
(E.D.N.Y. May 17, 2016) (“Sexual orientation discrimination
is not actionable under Title VII, and plaintiffs may not
shoehorn what are truly claims of sexual orientation discrim‐
ination into Title VII by framing them as claims of discrimi‐
nation based on gender stereotypes, as Plaintiff at times at‐
tempts to do here.”); Burrows v. Coll. of Cent. Florida,
No. 5:14‐CV‐197‐OC‐30, 2015 WL 4250427, at *9 (M.D. Fla.
July 13, 2015) (“Plaintiff’s claim, although cast as a claim for
gender stereotype discrimination, is merely a repackaged
claim for discrimination based on sexual orientation, which
is not cognizable under Title VII.”); Evans v. Georgia Regʹl
Hosp., No. CV415‐103, 2015 WL 5316694, at *3 (S.D. Ga.
Sept. 10, 2015) (“Evans’ allegations about discrimination in
response to maintaining a male visage also do not place her
within Title VII’s protection zone, even if labeled a ‘gender
conformity’ claim, because it rests on her sexual orientation
no matter how it is otherwise characterized.”), report and rec‐
ommendation adopted, No. CV415‐103, 2015 WL 6555440
(S.D. Ga. Oct. 29, 2015); Pagan v. Holder, 741 F. Supp. 2d 687,
695 (D.N.J. 2010) (“This is a hollow attempt to amend the
Complaint through briefing and recast a sexual orientation
claim as a gender stereotyping claim.”), affʹd, Pagan v. Gonza‐
lez, 430 F. App’x 170 (3d Cir. 2011).
No. 15‐1720 19
This line of cases, in which the gender non‐conformity
claim cannot be tainted with any hint of a claim that the em‐
ployer also engaged in sexual orientation discrimination,
leads to some odd results. As the concurrence in this circuit’s
decision in Hamm pointed out, “the absurd conclusion fol‐
lows that the law protects effeminate men from employment
discrimination, but only if they are (or are believed to be)
heterosexuals.” Hamm, 332 F.3d at 1067 (Posner, J. concur‐
ring). And the concurrence was not merely crying wolf. At
least one district court has taken the anti‐bootstrapping pro‐
nouncements in Dawson and Simonton, supra and declared
that when determining whether a claim for gender non‐
conformity can stand, “the critical fact under the circum‐
stances is the actual sexual orientation of the harassed per‐
son. If the harassment consists of homophobic slurs directed
at a homosexual, then a gender‐stereotyping claim by that
individual is improper bootstrapping. If, on the other hand,
the harassment consists of homophobic slurs directed at a
heterosexual, then a gender‐stereotyping claim by that indi‐
vidual is possible.” Estate of D.B. by Briggs v. Thousand Islands
Cent. Sch. Dist., No., 715CV0484, 2016 WL 945350, at *8
(N.D.N.Y. Mar. 14, 2016) (internal citations omitted, empha‐
sis in original).4 In this circuit, however, we have made it
clear that “Title VII protects persons, not classes” and that
anyone can pursue a claim under Title VII no matter what
4 The plaintiff in Estate of D.B. by Briggs brought a claim under Title IX of
the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq., but “be‐
cause a Title IX sex discrimination claim is treated in much the same way
as a Title VII sex discrimination claim, Title VII jurisprudence therefore
applies.” Estate of D.B., 2016 WL 945350, at *8 (citing Papelino v. Albany
College of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011)).
20 No. 15‐1720
her gender or sexual orientation or that of her harasser. City
of Belleville, 119 F.3d at 574, 575, 588 (“[w]e have never made
the viability of sexual harassment claims dependent upon
the sexual orientation of the harasser, and we are convinced
that it would be both unwise and improper to begin doing
so.”); see also Prowel, 579 F.3d at 289 (“This does not mean,
however, that a homosexual individual is barred from bring‐
ing a sex discrimination claim under Title VII, which plainly
prohibits discrimination “because of sex.”). Our intuition
was confirmed by the Supreme court in Oncale, which held
that same‐sex sexual harassment does not depend on the
sexual orientation of the harasser. Oncale, 523 U.S. at 80
(“harassing conduct need not be motivated by sexual desire
to support an inference of discrimination on the basis of
sex.”) It is hard to reconcile the holding in Oncale with a le‐
gal theory that only non‐gay plaintiffs can have a viable
claim for gender non‐conformity discrimination under Title
VII. And in this circuit, at least, it is clear that “we do not fo‐
cus on the sexuality of the plaintiff in determining whether a
Title VII violation has occurred.” Hamm, 332 F.3d at 1065.
Other courts address the problem of the ill‐defined lines
between sexual orientation and gender non‐conformity
claims by carefully trying to tease the two apart and looking
only at those portions of the claim that appear to address
cognizable gender non‐conformity discrimination.5 See, e.g.
5 Some of these courts go half a step further and articulate that the sexual
orientation claim has no effect whatsoever on the gender non‐conformity
claim. See Rene, 305 F.3d at 1063 (“an employee’s sexual orientation is
irrelevant for purposes of Title VII. It neither provides nor precludes a
cause of action for sexual harassment.”); Centola, 183 F. Supp. 2d at 409‐
10 (“Centola does not need to allege that he suffered discrimination on
No. 15‐1720 21
EEOC v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 457‐59 (5th
Cir. 2013) (sustaining a jury verdict finding sex discrimina‐
tion by emphasizing the very specific testimony isolating
gender‐based discrimination from sexual orientation). But
because of the indeterminate boundaries, one is left to won‐
der whether the court has, in fact successfully separated the
two claims. For example, in Prowel, a factory worker who
described himself both as gay and effeminate succeeded in
defeating summary judgment by proffering just enough evi‐
dence of harassment based on gender stereotypes, as op‐
posed to that based on sexual orientation, to satisfy the court
that the claim might succeed. Id. 579 F.3d 291‐92. Notably,
Prowel succeeded because he convinced the court that he
displayed stereotypically feminine characteristics by testify‐
ing that he had a high voice, did not curse, was well‐
groomed, neat, filed his nails, crossed his legs, talked about
art and interior design, and pushed the buttons on his facto‐
ry equipment “with pizzazz.” Id. The Third Circuit conclud‐
ed that a jury could find that “Prowel was harassed because
he did not conform to [his employer’s] vision of how a man
should look, speak, and act‐rather than harassment based
solely on his sexual orientation.” Id. at 292. But it is not at all
clear that the court successfully segregated characteristics
based on sexual orientation from those based on gender, or if
such a task is even possible. Having a high voice and an in‐
the basis of his sex alone or that sexual orientation played no part in his
treatment … if Centola can demonstrate that he was discriminated
against ‘because of … sex’ as a result of sex stereotyping, the fact that he
was also discriminated against on the basis of his sexual orientation has
no legal significance under Title VII.”).
22 No. 15‐1720
terest in grooming, art, interior design and civil language,
are not merely attributes associated with women, but also
attributes stereotypically associated with gay men. So for
purposes of Title VII, should a court deem that pushing a
factory button “with pizzazz” is a trait associated with gay
men or straight women? It is difficult to know. We can as‐
sume that the vast majority of the stereotypes of gay men
have come about particularly because they are associated
with feminine attributes. The attempts to identify behaviors
that are uniquely attributable to gay men and lesbians often
lead to strange discussions of sexual orientation stereotypes.
For example, one district court concluded that mimicking a
gay co‐worker with a lisp and “flamboyant” voice is dis‐
crimination based solely on sexual orientation and not gen‐
der. Anderson v. Napolitano, No. 09‐60744‐CIV, 2010 WL
431898, at *6 (S.D. Fla. Feb. 8, 2010). “[T]he logical conclusion
is that his coworkers were lisping because of the stereotype
that gay men speak with a lisp. Lisping is not a stereotype
associated with women. Thus, again, the coworkers’ actions
were not “because of sex,” but because of Andersonʹs sexual
orientation” Id.
Nevertheless, although disentangling gender discrimina‐
tion from sexual orientation discrimination may be difficult,
we cannot conclude that it is impossible. There may indeed
be some aspects of a worker’s sexual orientation that create a
target for discrimination apart from any issues related to
gender. Harassment may be based on prejudicial or stereo‐
typical ideas about particular aspects of the gay and lesbian
“lifestyle,” including ideas about promiscuity, religious be‐
liefs, spending habits, child‐rearing, sexual practices, or poli‐
tics. Although it seems likely that most of the causes of dis‐
crimination based on sexual orientation ultimately stem
No. 15‐1720 23
from employers’ and co‐workers’ discomfort with a lesbian
woman’s or a gay man’s failure to abide by gender norms,
we cannot say that it must be so in all cases. Therefore we
cannot conclude that the two must necessarily be co‐
extensive unless or until either the legislature or the Su‐
preme Court says it is so.
Because we recognize that Title VII in its current iteration
does not recognize any claims for sexual orientation discrim‐
ination, this court must continue to extricate the gender non‐
conformity claims from the sexual orientation claims. We
recognize that doing so creates an uncomfortable result in
which the more visibly and stereotypically gay or lesbian a
plaintiff is in mannerisms, appearance, and behavior, and
the more the plaintiff exhibits those behaviors and manner‐
isms at work, the more likely a court is to recognize a claim
of gender non‐conformity which will be cognizable under
Title VII as sex discrimination. See, e.g., Rene, 305 F.3d at 1068
(gay male employee taunted and harassed by co‐workers for
having feminine traits successfully pleaded claim of sex dis‐
crimination under Title VII); Nichols v. Azteca Rest. Enter.,
Inc., 256 F.3d 864, 874‐75 (9th Cir. 2001) (noting that the
abuse directed at plaintiff reflected a belief that he did not
act as a man should act—he had feminine mannerisms, did
not have sex with a female friend, and did not otherwise
conform to gender‐based stereotypes—and thus the discrim‐
ination was closely linked to gender and therefore actionable
under Title VII); Reed v. S. Bend Nights, Inc., 128 F. Supp. 3d
996, 1001 (E.D. Mich. 2015) (lesbian employee “put forth suf‐
ficient evidence in support of her allegation that she was dis‐
criminated against because she did not conform to tradition‐
al gender stereotypes in terms of her appearance, behavior,
or mannerisms at work,” where her supervisor testified that
24 No. 15‐1720
she “dressed more like a male” and her “’demeanor’ was a
‘little more mannish.’”); Koren v. Ohio Bell Tel. Co.,
894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012) (gay man al‐
leged sufficient facts to support a claim of sex discrimination
based on his failure to comply with gender norms where he
changed his last name to his husband’s and his employer re‐
fused to call him by his new name); Centola, 183 F. Supp. 2d
at 410 (concluding that plaintiff’s coworkers must have sur‐
mised that the plaintiff was gay because they found him to
be effeminate); Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212, 1217‐20 (D. Or. 2002) (holding that a
jury could find that the employer repeatedly harassed, and
ultimately discharged, the plaintiff because she did not con‐
form to the employer’s stereotype of how a woman ought to
behave, both because she dated other women and because
she wore male‐styled clothing).
Plaintiffs who do not look, act, or appear to be gender
non‐conforming but are merely known to be or perceived to
be gay or lesbian do not fare as well in the federal courts. In
a Sixth Circuit case, for example, the plaintiff, who was not
openly gay and, in fact, even in the lawsuit “declined to re‐
veal whether or not he [was], in fact, homosexual” could not
defeat a motion to dismiss his Title VII claim because
the gender non‐conforming behavior which
Vickers claims supports his theory of sex stere‐
otyping is not behavior observed at work or af‐
fecting his job performance. Vickers has made
no argument that his appearance or manner‐
isms on the job were perceived as gender non‐
conforming in some way and provided the ba‐
sis for the harassment he experienced. Rather,
No. 15‐1720 25
the harassment of which Vickers complains is
more properly viewed as harassment based on
Vickersʹ perceived homosexuality, rather than
based on gender non‐conformity.
Vickers, 453 F.3d at 763.
Likewise, in Bibby, 260 F.3d at 264, the Third Circuit
granted summary judgment against the plaintiff where he
“did not claim that he was harassed because he failed to
comply with societal stereotypes of how men ought to ap‐
pear or behave or that as a man he was treated differently
than female co‐workers. His claim was, pure and simple,
that he was discriminated against because of his sexual ori‐
entation.” Id. See also Hamm, 332 F.3d at 1063‐64 (Hamm’s
claim could not survive a motion for summary judgment
where his claim was based on speculation by co‐workers
that he was gay rather than any specifically alleged gender
non‐conforming attributes); Hamner, 224 F.3d at 705 (uphold‐
ing judgment as a matter of law for the employer where the
plaintiff’s discrimination claim was based only on the fact
that his employer knew his status as a gay man and “abso‐
lutely could not handle that”); Johnson v. Hondo, Inc.,
125 F.3d 408, 413‐14 (7th Cir. 1997) (concluding that a slew of
gay epithets could not sustain a claim of gender discrimina‐
tion where there was no evidence that the plaintiff failed to
conform to male stereotypes); Simonton, 232 F.3d at 38 (hold‐
ing that a plaintiff could not defeat a motion to dismiss
based on a gender non‐conformity claim under Title VII
where he never set forth any claim that he “behaved in a ste‐
reotypically feminine manner.”); Pambianchi v. Arkansas Tech
Univ., 95 F. Supp. 3d 1101, 1114 (E.D. Ark. 2015) (“Sexual
orientation alone cannot be the alleged gender non‐
26 No. 15‐1720
conforming behavior that gives rise to an actionable Title VII
claim under a sex‐stereotyping theory.”). But see Boutillier v.
Hartford Pub. Sch., No. 3:13CV1303, 2014 WL 4794527, *2
(D. Ct. Sept. 25, 2014) (allowing claim of lesbian teacher to go
forward where the only evidence of gender non‐conformity
was the fact that she was openly married to a woman be‐
cause “[c]onstrued most broadly, she has set forth a plausi‐
ble claim she was discriminated against based on her non‐
conforming gender behavior.”); Terveer v. Billington,
34 F. Supp. 3d 100, 116 (D.D.C. 2014) (the plaintiff defeated
the summary judgment motion by alleging that the defend‐
ant denied him promotions and created a hostile work envi‐
ronment because of the plaintiff’s failure to conform to male
sex stereotypes solely because of his status as a gay man.);
Centola, 183 F. Supp. at 410 (“Conceivably, a plaintiff who is
perceived by his harassers as stereotypically masculine in
every way except for his actual or perceived sexual orienta‐
tion could maintain a Title VII cause of action alleging sexual
harassment because of his sex due to his failure to conform
with sexual stereotypes about what ‘real’ men do or don’t
do.”)
In sum, the distinction between gender non‐conformity
claims and sexual orientation claims has created an odd state
of affairs in the law in which Title VII protects gay, lesbian,
and bisexual people, but frequently only to the extent that
those plaintiffs meet society’s stereotypical norms about how
gay men or lesbian women look or act—i.e. that gay men
tend to behave in effeminate ways and lesbian women have
masculine mannerisms. By contrast, lesbian, gay or bisexual
people who otherwise conform to gender stereotyped norms
in dress and mannerisms mostly lose their claims for sex dis‐
crimination under Title VII, although why this should be
No. 15‐1720 27
true is not entirely clear. It is true that “not all homosexual
men are stereotypically feminine and not all heterosexual
men are stereotypically masculine” as the Second Circuit ex‐
plained while defending the exclusion of sexual orientation
protection under Title VII. Simonton, 232 F.3d at 38. But it is
also true, as we pointed out above, that all gay, lesbian and
bisexual persons fail to comply with the sine qua non of
gender stereotypes—that all men should form intimate rela‐
tionships only with women, and all women should form in‐
timate relationships only with men.
Because courts have long held that Title VII will not sup‐
port a claim for sexual orientation discrimination per se,
many courts have been attempting to dress sexual orienta‐
tion discrimination claims in the garb of gender non‐
conformity case law, with the unsatisfactory results seen in
the confused hodge‐podge of cases we detail above. This has
led some courts toward a more blunt recognition of the diffi‐
culty of extricating sexual orientation claims from gender
non‐conformity claims. Thus the Videckis court’s observation,
which noted that “[s]imply put, the line between sex dis‐
crimination and sexual orientation discrimination is ‘difficult
to draw’ because that line does not exist, save as a lingering
and faulty judicial construct.” Videckis, 2015 WL 8916764, at
*5. This court long ago noted the difficulty and began to
grapple with it in a case involving same‐sex sexual harass‐
ment:
There is, of course, a considerable overlap in
the origins of sex discrimination and homo‐
phobia, and so it is not surprising that sexist
and homophobic epithets often go hand in
hand. Indeed, a homophobic epithet like “fag,”
28 No. 15‐1720
for example, may be as much of a disparage‐
ment of a man’s perceived effeminate qualities
as it is of his perceived sexual orientation. Ob‐
servations in this vein have led a number of
scholars to conclude that anti‐gay bias should,
in fact, be understood as a form of sex discrim‐
ination.
City of Belleville, 119 F.3d at 593. We had no need to decide
the matter directly in that case because we were satisfied
that there was adequate proof that the harassment recounted
by the plaintiff was animated by his failure to conform to
stereotypic gender norms. Id. at 575 (“One may reasonably
infer from the evidence before us that [the plaintiff] was har‐
assed ‘because of’ his gender. If that cannot be inferred from
the sexual character of the harassment itself, it can be in‐
ferred from the harassers’ evident belief that in wearing an
earring, [the plaintiff] did not conform to male standards.”).
Nevertheless, by noting the overlay between anti‐gay bias
and sex discrimination we seemed to have anticipated the
EEOC’s path in Baldwin, 2015 WL 4397641, at *10.
Likewise, the Sixth Circuit was on to something when it
said, “In all likelihood, any discrimination based on sexual
orientation would be actionable under a sex stereotyping
theory if this claim is allowed to stand, as all homosexuals,
by definition, fail to conform to traditional gender norms in
their sexual practices.” Vickers, 453 F.3d at 764. The Vickers
court thought the solution to the inability to segregate sexual
orientation from gender non‐conformity claims was to deny
all gender non‐conformity claims where there was also a
claim of sexual orientation discrimination. But the other ap‐
proach could be to recognize the fact that sexual orientation
No. 15‐1720 29
discrimination is, in fact, discrimination based on the gender
stereotype that men should have sex only with women and
women should have sex only with men. “Conceivably, a
plaintiff who is perceived by his harassers as stereotypically
masculine in every way except for his actual or perceived
sexual orientation could maintain a Title VII cause of action
alleging sexual harassment because of his sex due to his fail‐
ure to conform with sexual stereotypes about what ‘real’
men do or don’t do.” Centola, 183 F. Supp. 2d at 410. As the
next paragraph explains, with increasing frequency, the
lower courts are beginning to see the false distinction and
are turning to this latter approach.
The idea that the line between gender non‐conformity
and sexual orientation claims is arbitrary and unhelpful has
been smoldering for some time, but the EEOC’s decision in
Baldwin threw fuel on the flames. Since the EEOC released
its decision in Baldwin, stating that “allegations of discrimi‐
nation on the basis of sexual orientation necessarily state a
claim of discrimination on the basis of sex,” Baldwin, 2015
WL 4397641, at *10, more and more district court judges
have begun to scratch their heads and wonder whether the
distinction between the two claims does indeed make any
sense. For example, a district court in the Southern District
of New York, noting the holding of Baldwin, the changing
legal landscape, and the arbitrariness of distinguishing be‐
tween gender based discrimination and sexual orientation
discrimination, stated:
The lesson imparted by the body of Title VII
litigation concerning sexual orientation dis‐
crimination and sexual stereotyping seems to
be that no coherent line can be drawn between
30 No. 15‐1720
these two sorts of claims. Yet the prevailing
law in this Circuit—and, indeed, every Circuit
to consider the question—is that such a line
must be drawn. Simonton is still good law, and,
as such, this Court is bound by its dictates.
Christiansen, 2016 WL 951581, at *14 (“Title VII does not pro‐
scribe discrimination because of sexual orientation”) (citing
Simonton, 232 F.3d at 36). And as we just noted above, the
Eastern District of Virginia has concluded that
the distinction [between sexual orientation dis‐
crimination and gender discrimination] is illu‐
sory and artificial, and that sexual orientation
discrimination is not a category distinct from
sex or gender discrimination. Thus, claims of
discrimination based on sexual orientation are
covered by Title VII and Title IX, but not as a
category of independent claims separate from
sex and gender stereotype. Rather, claims of
sexual orientation discrimination are gender
stereotype or sex discrimination claims.
Videckis, 2015 WL 8916764, at *5. Likewise, several other dis‐
trict courts have indicated their agreement with the EEOC’s
decision in Baldwin, or, at least recognized that the blurring
line between gender and sexual orientation claims might re‐
quire courts to reconsider the long line of precedent distin‐
guishing them. Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d
1190, 1193 (M.D. Ala. 2015) (“This court agrees instead with
the view of the Equal Employment Opportunity Commis‐
sion that claims of sexual orientation‐based discrimination
are cognizable under Title VII.”); Koke v. Baumgardner, No.
15‐CV‐9673, 2016 WL 93094, at *2 (S.D.N.Y. Jan. 5, 2016)
No. 15‐1720 31
(“Given the door left ajar by Simonton for claims based on
‘failure to conform to sex stereotypes,’ the EEOC’s recent
holding that Title VII prohibits discrimination on the basis of
sexual orientation, and the lack of a Supreme Court ruling
on whether Title VII applies to such claims, I cannot con‐
clude, at least at this stage, that plaintiff’s Title VII claim is
“wholly insubstantial and frivolous.”).
In short, the district courts—the laboratories on which
the Supreme Court relies to work through cutting‐edge legal
problems—are beginning to ask whether the sexual orienta‐
tion‐denying emperor of Title VII has no clothes. See Arizona
v. Evans, 514 U.S. 1, 23, n.1 (1995) (Ginsburg, J. dissenting)
(1995) (“We have in many instances recognized that when
frontier legal problems are presented, periods of ‘percola‐
tion’ in, and diverse opinions from, state and federal appel‐
late courts may yield a better informed and more enduring
final pronouncement by this Court.”)
While this eddy of statutory Title VII sexual orientation
decisions has been turning in the lower federal courts, the
Supreme Court has been expounding upon the rights of les‐
bian, gay, and bisexual persons in a constitutional context.
Of course, these constitutional cases have no direct bearing
on the outcome of litigation under Title VII of the Civil
Rights Act, but they do inform the legal landscape that
courts face as they interpret “because of sex” in Title VII. In
1996 in Romer v. Evans, 517 U.S. 620 (1996), for example, the
Court invalidated, under the Equal Protection Clause, an
amendment to Colorado’s Constitution that sought to fore‐
close any branch or political subdivision of the State from
protecting persons against discrimination based on sexual
orientation. Next, in Lawrence v. Texas, the Court determined
32 No. 15‐1720
that individuals’ rights to liberty under the Due Process
Clause gives them the full right to engage in private consen‐
sual sexual conduct without intervention of the government.
Id., 539 U.S. at 578 (2003). Then, in 2013, the Supreme Court
struck down the Defense of Marriage Act (DOMA), finding
that it violated the equal protection guarantee of the Fifth
Amendment. United States v. Windsor, 133 S. Ct. 2675 (2013).
And finally, two years later, the Supreme Court ruled that
under both the Due Process and Equal Protection Clauses of
the Fourteenth Amendment, same‐sex couples had the right
to marry in every state of the Union. Obergefell v. Hodges,
135 S. Ct. 2584, 2696 (2015). We emphasize yet again that
none of these cases directly impacts the statutory interpreta‐
tions of Title VII. The Supreme Court neither created Title
VII nor was required to address any issues regarding em‐
ployment discrimination in considering the issues it chose to
address. The role of the Supreme Court is to interpret the
laws passed by Congress. And, in fact, in Obergefell, one ami‐
cus brief urged the Court to view the same sex marriage de‐
bate through the lens of gender discrimination arguing that
the state’s permission to marry depends on the gender of the
participants. Brief Amicus Curiae of Legal Scholars Stephen
Clark, Andrew Koppelman, Sanford Levinson, Irina Manta, Erin
Sheley and Ilya Somin, Obergefell v. Hodges, 2015 WL 1048436,
*4 (U.S. 2015). In oral arguments Chief Justice John Roberts
delved into this realm of questioning wondering whether “if
Sue loves Joe and Tom loves Joe, Sue can marry him and
Tom canʹt. And the difference is based upon their different
sex. Why isn’t that a straightforward question of sexual dis‐
crimination?” Transcript of oral argument at 62:1‐4 Oberge‐
fell, 135 S. Ct. at 2584. But despite having considered this op‐
tion, the Court rejected it for a holding based in the Four‐
No. 15‐1720 33
teenth Amendment. The Court did not address the issue of
gender nor of workplace discrimination.
The cases as they stand do, however, create a paradoxical
legal landscape in which a person can be married on Satur‐
day and then fired on Monday for just that act. For although
federal law now guarantees anyone the right to marry an‐
other person of the same gender, Title VII, to the extent it
does not reach sexual orientation discrimination, also allows
employers to fire that employee for doing so. From an em‐
ployee’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 pri‐
vate 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 what‐
soever—unless she happens to live in a state or locality with
an anti‐discrimination statute that includes sexual orienta‐
tion. More than half of the United States, however, do not
have such state protections: Alabama, Alaska, Arkansas, Ar‐
izona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky,
Louisiana, Michigan, Mississippi, Missouri, Montana, Ne‐
braska, North Carolina, North Dakota, Ohio, Oklahoma,
Pennsylvania, South Carolina, South Dakota, Tennessee,
Texas, Virginia, West Virginia, and Wyoming.6 Moreover,
6 States with laws that prohibit sexual orientation discrimination in em‐
ployment: California: Ca. Gov’t. Code §§ 12920, 12940, 12926 & 12949;
Colorado: Colo Rev. Stat. § 24‐34‐401, et seq.; Connecticut: Conn. Gen. Stat.
sec. 46a‐81c(1); Delaware: 19 Del. C. § 711; Hawaii: Haw. Rev. Stat. Ann. §§
368‐1, 378‐2; Illinois: 775 ILCS 5/1‐103 & 775 ILCS 5/1‐102; Iowa: Iowa
Code Ann. 216.2(14), 216.6; Maine: Me. Rev. Stat. Tit. 5 § 4571, § 4572, §
34 No. 15‐1720
the truth of this scenario would also apply to perceived sex‐
ual orientation. And so, for example, an employer who
merely has a hunch that an employee is gay can terminate
that employee for being gay whether or not she actually is.
And even if the employer is wrong about the sexual orienta‐
tion of the non‐gay employee, the employee has no recourse
under Title VII as the discharge still would be based on sex‐
ual orientation.
In one sense, the paradox is not our concern. Our task is
to interpret Title VII as drafted by Congress, and as we con‐
cluded in Ulane, Title VII prohibits discrimination only on
the basis of gender. Id., 742 F.2d at 1085. If we, and every
4553 9‐C; Maryland: Md. Code Ann., State Gov’t § 20‐606; Massachusetts:
Mass. Gen. Laws Ch. 151B, § 3(6), § 4; Minnesota: Minn. Stat. Ann. §
363A.02, § 363A.08; Nevada: Nev. Rev. Stat. Ann. §§ 613.330, 610.185,
613.340, 613.405, & 338.125; New Hampshire: N.H. Rev. Stat. Ann. §§ 354‐
A:6, 354‐A:7; New Jersey: N.J. Stat. §§ 10:5‐3, 10:5‐4, 10:5‐12; New Mexico:
N.M. Stat. §28‐1‐7; New York: N.Y. Exec. Law § 296; Oregon: Or. Rev. Stat.
Ann. § 659A.030; Rhode Island: 28 R.I. Gen. Laws §§ 28‐5‐5, 28‐5‐7; Utah:
Utah Code Ann. § 34A‐5‐106; Vermont: Vt. Stat. Ann. tit. 21, § 495; Wash‐
ington: Wash. Rev. Code Ann. §§ 49.60.030 49.60.010, 49.60.040; Wiscon‐
sin: Wis. Stat. Ann. §§ 111.31, 111.36, 111.325.
The following states have sexual‐orientation discrimination protec‐
tions for government employees only, but not private employees: Alaska:
Alaska Admin. Order 195; Arizona: Executive Order 2003‐22; Indiana:
Indiana Governor Mitch Daniel’s Policy statement of 4‐26‐05; Kentucky:
Kentucky Executive Order 2003‐533; Louisiana: Executive Order No. JBE
2016 – 11, Governor of Louisiana, 13 April 2016; Michigan: Michigan Ex‐
ecutive Directive, No. 2003‐24; Missouri: Executive Order 10‐24; Montana:
Montana Executive Order No. 41‐2008; North Carolina: Executive Order
93 (2016); Ohio: Executive Order 2011‐05K; Pennsylvania: Executive Order
No. 2003‐10; Virginia: Executive Order 1 (2014).
No. 15‐1720 35
other circuit to have considered it are wrong about the inter‐
pretation of the boundaries of gender discrimination under
the “sex” prong of Title VII, perhaps it is time for the Su‐
preme Court to step in and tell us so.
As things stand now, however, our understanding of Ti‐
tle VII leaves us with a somewhat odd body of case law that
protects a lesbian who faces discrimination because she fails
to meet some superficial gender norms—wearing pants in‐
stead of dresses, having short hair, not wearing make up—
but not a lesbian who meets cosmetic gender norms, but vio‐
lates the most essential of gender stereotypes by marrying
another woman. We are left with a body of law that values
the wearing of pants and earrings over marriage. It seems
likely that neither the proponents nor the opponents of pro‐
tecting employees from sexual orientation discrimination
would be satisfied with a body of case law that protects
“flamboyant” gay men and “butch” lesbians but not the les‐
bian or gay employee who act and appear straight. This type
of gerrymandering to exclude some forms of gender‐norm
discrimination but not others leads to unsatisfying results.
D.
In addition to the inconsistent application of Title VII to
gender non‐conformity, these sexual orientation cases high‐
light another inconsistency in courts’ applications of Title VII
to sex as opposed to race. As the EEOC noted in Baldwin,
when applying Title VIIʹs prohibition of race discrimination,
courts and the Commission have consistently concluded that
the statute prohibits discrimination based on an employee’s
association with a person of another race, such as an interra‐
cial marriage or friendship. Baldwin, 2015 WL 4397641, at *6.
But although it has long been clear that Title VII protects
36 No. 15‐1720
white workers who are discriminated against because they
have close associations with African‐American partners and
vice versa, it has not protected women employees who are
discriminated against because of their intimate associations
with other women, and men with men.
Since the earliest days of Title VII, the EEOC has taken
the position that Title VII, in proscribing race‐based discrim‐
ination, includes a prohibition on discrimination toward
employees because of their interracial associations. See, e.g.,
Equal Employment Opportunity Commʹn, EEOC Dec. No. 76‐23
(1975) (Title VII claim properly alleged where job applicant
not hired due to his white sister’s domestic partnership with
an African American). The courts that have considered this
question agree: Title VII protects employees in interracial
relationships. That is to say, courts have concluded that if a
white employee is fired because she is dating or married to
an African‐American man, this constitutes discrimination on
the basis of race. Had she been in a relationship with a white
man, she would not have faced the same consequences. The
rationale is that “where an employee is subjected to adverse
action because an employer disapproves of interracial asso‐
ciation, the employee suffers discrimination because of the
employee’s own race.” Holcomb v. Iona Coll., 521 F.3d 130, 139
(2d Cir. 2008) (plaintiff claiming that he suffered an adverse
employment action because of his interracial marriage has
alleged discrimination as a result of his membership in a
protected class under Title VII); See also Floyd v. Amite Cty.
Sch. Dist., 581 F.3d 244, 249 (5th Cir. 2009) (collecting cases);
Deffenbaugh‐Williams v. Wal‐Mart Stores, Inc., 156 F.3d 581,
589 (5th Cir. 1998) (white woman dating African‐American
man), rehʹg en banc granted, opinion vacated on other grounds,
Williams v. Wal‐Mart Stores, Inc., 169 F.3d 215 (5th Cir. 1999),
No. 15‐1720 37
and opinion reinstated on rehʹg, Williams v. Wal‐Mart Stores,
Inc., 182 F.3d 333 (5th Cir. 1999); Drake v. Minnesota Min. &
Mfg. Co., 134 F.3d 878, 884 (7th Cir. 1998) (declining to decide
whether an employee who advised and counseled African‐
American co‐workers could bring an associational race dis‐
crimination claim under Title VII, as it was conceded by the
defendant, but noting that other courts have determined that
such a claim is available when factually supported); Stacks v.
Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1327 n. 6 (8th Cir.
1994) (agreeing with district court that claim for discrimina‐
tion based on interracial relationships was cognizable under
Title VII, but finding that plaintiff failed to present sufficient
evidence to support the claim); Parr v. Woodmen of the World
Life Ins. Co., 791 F.2d 888, 891–92 (11th Cir. 1986) (white man
married to African‐American woman can state a claim for
failure to hire under Title VII); Whitney v. Greater N.Y. Corp.
of Seventh–Day Adventists, 401 F. Supp. 1363, 1366
(S.D.N.Y.1975) (white woman alleged viable claim of dis‐
crimination based on casual social relationship with African‐
American man); Gresham v. Waffle House, Inc., 586 F. Supp.
1442, 1445 (N.D.Ga. 1984) (holding that plaintiff has stated a
claim under Title VII by alleging that she was discharged by
her employer because of her interracial marriage to a black
man).
The relationship in play need not be a marriage to be pro‐
tected. A number of courts have found that Title VII protects
those who have been discriminated against based on interra‐
cial friendships and other associations. See, e.g., Blanks v.
Lockheed Martin Corp., 568 F. Supp. 2d 740, 744 (S.D. Miss.
2007) (compiling cases in which courts have found viable
claims under Title VII where plaintiffs alleged discrimina‐
tion based on workplace or other associations with members
38 No. 15‐1720
of racial and national origin minority groups); see also
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir.
2004) (noting that a white employee who was also targeted
for discrimination was not a good comparator to plaintiff as
he was targeted because of his close associations with black
friends and co‐workers); Johnson v. Univ. of Cincinnati, 215
F.3d 561, 574 (6th Cir. 2000) (advocacy on behalf of women
and minorities); Tetro v. Elliott Popham Pontiac, Oldsmobile,
Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999)
(“A white employee who is discharged because his child is
biracial is discriminated against on the basis of his race, even
though the root animus for the discrimination is a prejudice
against the biracial child”); Drake, 134 F.3d at 884 (advising
and counseling African‐American co‐workers); Stacks,
27 F.3d at 1327 (professional relationship with African‐
American co‐worker); Whitney, 401 F. Supp. at 1366 (casual
social relationship with African‐American).
It is also well established that, unlike equal protection
claims that apply differing levels of scrutiny depending on
the nature of the class, the classifications within Title VII—
race, color, religion, sex, or national origin—must all be
treated equally. “The statute on its face treats each of the
enumerated categories exactly the same.” Price Waterhouse,
490 U.S. at 244 n. 9. See also Natʹl R.R. Passenger Corp. v. Mor‐
gan, 536 U.S. 101, 116 n. 10 (2002) (“Hostile work environ‐
ment claims based on racial harassment are reviewed under
the same standard as those based on sexual harassment.”).
Consequently, if Title VII protects from discrimination a
white woman who is fired for romantically associating with
an African‐American man, then logically it should also pro‐
tect a woman who has been discriminated against because
she is associating romantically with another woman, if the
No. 15‐1720 39
same discrimination would not have occurred were she sex‐
ually or romantically involved with a man. It is true that
Hively has not made the express claim that she was discrim‐
inated against based on her relationship with a woman, but
that is, after all, the very essence of sexual orientation dis‐
crimination. It is discrimination based on the nature of an
associational relationship—in this case, one based on gender.
E.
A court would not necessarily need to expand the defini‐
tion of “sex discrimination” beyond the narrow understand‐
ing of “sex” we adopted in Ulane, to conclude that lesbian,
gay, and bisexual employees who are terminated for their
sexual conduct or their perceived sexual conduct have been
discriminated against on the basis of sex. Yet, by failing to
conform with both superficial and quintessential gender
norms, gay, lesbian, and bisexual employees could be seen
as facing discrimination comparable to that which Ann
Hopkins faced when her supervisors insisted that she live
up to the feminine stereotype the supervisors associated
with women. “Congress intended to strike at the entire spec‐
trum of disparate treatment of men and women resulting
from sex stereotypes.” Price Waterhouse, 490 U.S. at 251 (em‐
phasis ours). There is no reason to believe that the disparate
treatment caused when employees do not live up to the ste‐
reotype of how “real” men and women act in their sexual
lives should be excluded. As the Supreme Court stated in
Oncale, “Statutory prohibitions often go beyond the principal
evil to cover reasonably comparable evils, and it is ultimate‐
ly the provisions of our laws rather than the principal con‐
cerns of our legislators by which we are governed. Oncale,
523 U.S. 75 at 79.
40 No. 15‐1720
Curiously, however, despite Price Waterhouse and Oncale,
the Supreme Court has opted not to weigh in on the ques‐
tion of whether Title VII’s prohibition on sex‐based discrim‐
ination would extend to protect against sexual orientation
discrimination. Even in the watershed case of Obergefell,
when the Court declared that “laws excluding same‐sex
couples from the marriage right impose stigma and injury of
the kind prohibited by our basic charter,” it made no men‐
tion of the stigma and injury that comes from excluding les‐
bian, gay, and bisexual persons from the workforce or sub‐
jecting them to un‐remediable harassment and discrimina‐
tion. Obergefell, 135 S. Ct. at 2602. Perhaps the majority’s
statement in Obergefell that “[i]t demeans gays and lesbians
for the State to lock them out of a central institution of the
Nationʹs society” could be read as a forecast that the Su‐
preme Court might someday say the same thing about lock‐
ing gay men and lesbians out of the workforce—another
“central institution of the Nation’s society.” See Id. at 2602.
But, as we noted earlier, in the same‐sex marriage case, the
Court was presented with the opportunity to consider the
question as one of sex discrimination but declined to do so
and thus far has declined to take any opportunity to weigh
in on the question of sexual orientation discrimination under
Title VII.
In addition to the Supreme Court’s silence, Congress has
time and time again said “no,” to every attempt to add sexu‐
al orientation to the list of categories protected from discrim‐
ination by Title VII. See Bibby, 260 F.3d at 261 (compiling re‐
jected legislation to add sexual orientation to Title VII).
This circuit has not remained silent on the matter, but ra‐
ther, as we have described above, our own precedent holds
No. 15‐1720 41
that Title VII provides no protection from nor redress for
discrimination on the basis of sexual orientation. We require
a compelling reason to overturn circuit precedent. United
States v. Lara–Unzueta, 735 F.3d 954, 961 (7th Cir. 2013). Or‐
dinarily this requires a decision of the Supreme Court or a
change in legislation. Id. But it is also true that precedent can
be overturned when “the rule has proven to be intolerable
simply in defying practical workability … whether related
principles of law have so far developed as to have left the
old rule no more than a remnant of abandoned doctrine …
or whether facts have so changed, or come to be seen so dif‐
ferently, as to have robbed the old rule of significant applica‐
tion or justification.” Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 854–55 (1992). It may be that the rationale ap‐
pellate courts, including this one, have used to distinguish
between gender non‐conformity discrimination claims and
sexual orientation discrimination claims will not hold up
under future rigorous analysis. It seems illogical to entertain
gender non‐conformity claims under Title VII where the
non‐conformity involves style of dress or manner of speak‐
ing, but not when the gender non‐conformity involves the
sine qua non of gender stereotypes—with whom a person
engages in sexual relationships. And we can see no rational
reason to entertain sex discrimination claims for those who
defy gender norms by looking or acting stereotypically gay
or lesbian (even if they are not), but not for those who are
openly gay but otherwise comply with gender norms. We
allow two women or two men to marry, but allow employ‐
ers to terminate them for doing so. Perchance, in time, these
inconsistencies will come to be seen as defying practical
workability and will lead us to reconsider our precedent. Id.
See also Obergefell, 135 S. Ct. at 2603 (“in interpreting the
42 No. 15‐1720
Equal Protection Clause, the Court has recognized that new
insights and societal understandings can reveal unjustified
inequality within our most fundamental institutions that
once passed unnoticed and unchallenged.”)
Perhaps the writing is on the wall. It seems unlikely that
our society can continue to condone a legal structure in
which employees can be fired, harassed, demeaned, singled
out for undesirable tasks, paid lower wages, demoted,
passed over for promotions, and otherwise discriminated
against solely based on who they date, love, or marry. The
agency tasked with enforcing Title VII does not condone it,
(see Baldwin, 2015 WL 4397641 at **5,10); many of the federal
courts to consider the matter have stated that they do not
condone it (see, e.g., Vickers, 453 F.3d at 764‐65; Bibby, 260 F.3d
at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene,
243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 F. Appʹx at 51;
Silva, 2000 WL 525573, at *1); and this court undoubtedly
does not condone it (see Ulane, 742 F.2d at 1084). But writing
on the wall is not enough. Until the writing comes in the
form of a Supreme Court opinion or new legislation, we
must adhere to the writing of our prior precedent, and there‐
fore, the decision of the district court is AFFIRMED.
RIPPLE, Circuit Judge, joins the judgment of the court and
joins Parts I and IIA of the panel’s opinion.