Courts across the country have failed to find consensus on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) creates a protected class for individuals discriminated against because of their sexual orientation. The applicable language of Title VII is: “It shall be unlawful… for an employer to… discriminate… because of... sex.” Led by the Equal Employment Opportunity Commission (“EEOC”), however, the prevailing opinion appears to be shifting in favor of increased protections.
The federal courts in Pennsylvania offer an interesting review of these changing tides. Within a year of each other, two separate courts landed on opposing sides – in Coleman v. Amerihealth Caritas, the federal court for the Eastern District of Pennsylvania found that discrimination based on sexual orientation was not actionable under Title VII, whereas the federal court for the Western District of Pennsylvania in U.S. EEOC v. Scott Medical Health Center, held that sexual orientation discrimination was recognized under Title VII.
In 2001, the Third Circuit Appellate Court in Bibby v. Philadelphia Coca-Cola Bottling, Co. held that sexual orientation was not a cognizable discrimination claim under Title VII, and the Eastern District in its June 2017 Coleman decision found that it was bound by that precedent to dismiss a sexual orientation discrimination claim. However, in so doing, the district court tacitly acknowledged the change in societal perspectives over the last sixteen years. The court noted that numerous other jurisdictions have found sexual orientation to be a viable discrimination claim.
Months earlier, the Western District in Scott Medical conformed to this new viewpoint. The court reviewed multiple prior cases that showed the scope of Title VII’s protections for sex discrimination, and found that the Third Circuit’s Bibby precedent did not apply due to its outdated analysis.
While the Pennsylvania federal courts may be conflicted on the issue, the EEOC is steadfastly pursuing sexual orientation protections. The most recent example comes from New York where the Second Circuit court actually solicited the opinion of the EEOC before rendering its decision in a sexual orientation-based discrimination case. The EEOC, in its brief for the case, said that the distinction between discrimination based on sexual orientation and sex-stereotype discrimination was “unworkable and leads to absurd results.” In February 2018, the New York court agreed with the EEOC in ruling that Title VII prohibition extends to all discrimination “because of… sex” and sexual orientation discrimination is an actionable subset of sex discrimination.
The current split between two of Pennsylvania’s federal districts means employers lack a consistent legal precedent for guidance. Given this split and the number of sexual orientation-based discrimination cases being litigated, the Third Circuit is bound to revisit its 2002 Bibby decision in the near future. Until then employers must consider the unsettled environment and limit exposure to discrimination liability.