Clyde Snow

Supreme Court Declines to Settle Circuit Split on Sexual Orientation Discrimination Under Title VII

by | Jan 9, 2018

Earlier this month, the U.S. Supreme Court declined to take up an appeal from the Eleventh Circuit on whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964. Currently, Title VII prohibits employers from discriminating against employees and applicants on the basis of race, color, religion, sex, and national origin. However, in recent years, courts across the country have been asked to determine whether or not sexual orientation is a separate protected class, or, at least, a subset of one of the existing protected classes under Title VII.

Recent Events

Until early 2017, every circuit had held that sexual orientation was not actionable under Title VII. In March 2017, the Eleventh Circuit held in Evans v. Georgia Regional Hospital, 2017 WL 943925, at *5-6 (11th Cir. 2017), that a gay security guard did not have a Title VII discrimination claim based on sexual orientation. Despite a U.S. Supreme Court decision holding that Title VII bars employment discrimination for not conforming to gender stereotypes, the Eleventh Circuit held that it would not break from precedent that sexual orientation is not a protected class. 

Initially, the Seventh Circuit agreed with the Eleventh Circuit. In 2016, the Seventh Circuit heard a case involving Kimberly Hively, an openly gay adjunct professor at Ivy Tech Community College whom, between 2009 and 2014, the college passed her over for six full-time professor positions and ultimately declined to renew her adjunct teaching contract. Hively filed complaints with the EEOC, and then the U.S. District Court for the Northern District of Indiana, alleging that Ivy Tech discriminated against her based on her sexual orientation. The district court dismissed her claim, and the Eleventh Circuit affirmed the lower court’s decision, stating that during Title VII’s enactment, “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination . . .” Hively v. Ivy Tech Cmty Coll., 830 F.3d 698, 700 (7th Cir. 2016). The Seventh Circuit, however, re-heard the case en banc. Less than one month after the Eleventh Circuit released its opinion in Evans, the Eleventh Circuit reversed itself, holding that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation’” and that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Hively v. Ivy Tech Cmty Coll., 853 F.3d 339, 350-51 (7th Cir. 2017). 

With an obvious circuit split on an increasingly relevant issue, the plaintiff in Evans appealed to the U.S. Supreme Court to resolve the issue on a national basis. The Supreme Court denied the petition on December 11, 2017, leaving the individual circuits to determine whether or not sexual orientation is protected under Title VII. 

What Does This Mean for Utah Employers?

Since the Supreme Court punted on the issue, Utah employers are left with the Tenth Circuit’s position that sexual orientation is not protected by Title VII. However, in 2015, Utah’s legislature passed Senate Bill 296, which amended Utah Code § 34A-5-106 to prohibit employment discrimination on the basis of “sexual orientation” and “gender identity,” among others. Thus, though an employee may not have a claim under Title VII, he or she may bring a state claim for discrimination based on the employee’s sexual orientation. For Utah-specific employers, compliance with Utah law will guard you against any federal violations should the Supreme Court or Tenth Circuit change their stance. For Utah employers with locations outside of Utah, you should stay up-to-date on opinions issued by the Tenth Circuit and the U.S. Supreme Court to ensure your business is compliant with local, state, and federal employment laws.  

For assistance navigating Title VII discrimination issues and other employment issues, contact the Labor & Employment Group at Clyde Snow & Sessions at 801.322.2516.

About Clyde Snow & Sessions 

Clyde Snow & Sessions, P.C. has provided high-quality and cost-effective legal services to local and national clients for more than 60 years and has offices located in Utah, Oregon, and California. For more information, please visit

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