Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir. 2016)
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Hively began teaching as a part‐time adjunct professor at Ivy Tech in 2000. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that she had been “discriminated against on the basis of sexual orientation” as she had been “blocked from fulltime [sic] employment without just cause.” After exhausting the procedural requirements in the EEOC, she filed suit, pro se, under the Civil Rights Act of 1964, 42 U.S.C. 2000e (Title VII). The district court dismissed. The Seventh Circuit affirmed. Title VII does not apply to claims of sexual orientation discrimination. The court relied on precedent, but acknowledged the EEOC’s criticism of its position and that “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 court issued a subsequent related opinion or order on August 3, 2016.
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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. Dep t 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 Reg l 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.”), aff d, 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 Anderson s 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 Vickers 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 can t. 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 VII s 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 Comm n, 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), reh g 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 reh g, 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 Nat l 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 Nation s 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. App x 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.
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