Decisions barring employment discrimination based on sexual orientation will likely impact Title IX claims

April 01, 2018

Higher Education Alert

Author(s): Tina Sciocchetti, Zachary C. Osinski

This alert discusses recent decisions prohibiting sexual orientation workplace discrimination under Title VII, and predicts courts will follow suit regarding Title IX sex discrimination claims faced by colleges and universities.

Several recent decisions have held that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on sexual orientation. These holdings directly impact relationships colleges and universities have with employees under Title VII. In addition, given the parity with which courts typically interpret “sex discrimination” under Title VII and under Title IX of the Education Amendments of 1972 (“Title IX”), schools can expect courts to interpret Title IX to prohibit discrimination based on sexual orientation under any educational program and activity receiving federal funds.

Sexual orientation discrimination under Title VII

Most recently, the United States Court of Appeals for the Second Circuit (covering the states of New York, Connecticut and Vermont) added sexual orientation to the list of prohibited bases of discrimination in employment under Title VII. In a divided en banc decision, Zarda v Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), the plurality overruled its prior precedent and held sexual orientation discrimination constitutes a form of “sex” discrimination under Title VII. In doing so, the Second Circuit joined the United States Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin), which last year became the first federal appellate court to allow Title VII causes of action on the basis of sexual orientation discrimination, in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017). Until Hively, federal courts of appeals nationwide held sexual orientation discrimination was not actionable under Title VII. A third federal appellate court—the United States Court of Appeals for the First Circuit (Massachusetts, Rhode Island, New Hampshire, Maine and Puerto Rico)—in Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018), affirmed that gay and lesbian workers are protected by Title VII when they claim discrimination based on both their gender and their sexual orientation.

In Zarda, the plaintiff was a skydiving instructor who sued his former employer alleging he was fired from his job for failing to conform to male stereotypes by revealing his sexual orientation as a gay male. The district court had allowed the plaintiff to proceed under New York State law, which expressly prohibited sexual orientation discrimination (with a jury ultimately deciding in favor of his employer), but dismissed his Title VII claim because established case law in the Second Circuit held there was no protection under that law against discrimination on the basis of sexual orientation. On appeal, a panel of the Second Circuit upheld the lower court’s decision that claims of sexual orientation discrimination were not cognizable under Title VII, and a rehearing en banc followed.

In holding that an employee is entitled to bring a Title VII claim for discrimination on the basis of sexual orientation, the Second Circuit examined the “changing legal landscape” that had occurred in the nearly two decades since its earlier decisions on the issue, including developments in Supreme Court jurisprudence regarding sex and race discrimination under Title VII. The Second Circuit observed that since the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), it has been “well-settled that gender stereotyping violates Title VII’s prohibition on discrimination ‘because of …sex.’” But, the Second Circuit and other circuit courts of appeals had previously held that Title VII did not allow sexual orientation discrimination claims, including claims that being gay or lesbian constitutes nonconformity with a gender stereotype. Overruling any conflicting prior precedent, the majority opinion held that “sexual orientation discrimination is motivated, at least in part, by sex and thus is a subset of sex discrimination.”

It should be noted that not every federal appellate court that recently addressed the issue of Title VII application to sexual orientation claims has found them cognizable. A divided panel of the Eleventh Circuit (Alabama, Florida and Georgia) declined to recognize such a claim as its prior precedent had not been overruled by the Supreme Court or the Eleventh Circuit sitting en banc. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017).

Sexual orientation discrimination under Title IX

Because case law interpreting Title VII guides courts in evaluating Title IX claims, schools should be aware the decisions in Zarda, Hively and Franchina signal that courts in these circuits will likely view Title IX’s prohibition against discrimination on the basis of “sex” to include sexual orientation. This would appear to be the case even though the federal agencies charged with implementation and enforcement of Title IX, the Department of Justice (DOJ) and the Department of Education (USDOE), take the position that it currently does not extend to discrimination on the basis of sexual orientation. In February 2017, both agencies issued a “Dear Colleague” letter withdrawing the Obama administration’s policy and guidance interpreting Title IX to bar discrimination on the basis of a student’s gender identity (specifically, regarding access to sex-segregated facilities based on gender identity). Additionally, the January 2001 Title IX Guidance to which USDOE reverted back in its September 22, 2017, Dear Colleague Letter, specifies that “Title IX does not prohibit discrimination on the basis of sexual orientation.” The Department’s Office of Civil Rights is no longer taking discrimination cases based on sexual orientation.

Federal courts who have extended sexual orientation protection under Title VII are unlikely to adopt the positions of DOJ and USDOE about the scope of Title IX. In this respect, Zarda is instructive. There, the DOJ filed an amicus brief arguing that sexual orientation discrimination was not unlawful under Title VII, a position the Second Circuit expressly rejected. In addition, the January 2001 Guidance on Title IX specifically cites to three cases in support of the proposition that sexual orientation discrimination claims are excluded from Title IX. However, the Zarda Court specifically rejected these cases, reasoning that two predated the Supreme Court’s Price Waterhouse decision (prohibiting gender stereotyping) and the third was decided “one month after Price Waterhouse but made no mention of it.” Accordingly, college and university plaintiffs who now have a lawful basis to pursue a sexual orientation discrimination claim under Title VII will likely be able to bring a cognizable claim on the same basis under Title IX in the jurisdictions that have recently ruled on the Title VII issue.

Schools also should be aware that, as is the case with prohibition against workplace sex discrimination, many state laws expressly address sexual orientation in an educational setting beyond whatever federal protection may exist under Titles VII and IX. For example, New York’s “Enough is Enough” campus sexual assault law provides, in pertinent part, that its protections apply “regardless of … sex, gender identity or expression, [or] sexual orientation.…” N.Y. Educ. Law, Art. 129-B § 6440(5). The law’s definition of “affirmative consent” also provides that “consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.” Id. at § 6441(1).


Colleges and universities in several jurisdictions should be aware of the trend among federal courts to recognize claims of sexual orientation discrimination in employment. With this changing legal landscape, schools should expect the possibility of a similar expansion of anti-sex discrimination rights under Title IX, despite the contrary interpretation of the statute by DOJ and USDOE. Also on the horizon are questions concerning the extent of the protections afforded by Titles VII and IX regarding gender identity. We will continue to monitor court decisions and agency determinations for developments on these issues.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

Back to top