Consider the following hypothetical situation: A school principal in a public school district receives multiple requests from elementary school parents to not place their child with an openly gay teacher when class assignments are made for the fall. Other parents have voiced religious objections to having their child taught by a gay teacher. When the teacher’s contract is not renewed, he believes the decision not to rehire him may have been related to the parents’ objections. The teacher files a lawsuit alleging that this adverse employment decision was a result of his sexual orientation in violation of Title VII. Does this teacher have a viable legal claim under Title VII? The answer: It depends.

Upon What Does It Depend?

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin in the workplace, but it does not specifically include sexual orientation as a protected category. Accordingly, for many years courts have grappled with whether Title VII covers sexual orientation discrimination. The term “sex” as a protected classification under Title VII has been expanded in other Supreme Court employment-related decisions to include gender stereotyping (Price Waterhouse v. Hopkins) and same-sex harassment (Oncale v. Sundowner Offshore Services Inc.), but has not been specifically extended to include sexual orientation. For example, in Hopkins, a female employee was criticized by her employer for being too “masculine” and not “feminine” enough and in need of “charm school.” The court reasoned that “we are beyond the day when an employer could evaluate employees by assuming and insisting that they matched the stereotype associated with their group.” Because the court extended Title VII protections to cover both gender stereotyping and same-sex harassment, it seemed logical that it would also extend them to include sexual orientation. Others argued, however, that in 1964, when Title VII was enacted, “sex” would have likely been defined as binary male-female biological identity.

How Have Federal Courts Interpreted the Law?

Due to the lack of Supreme Court guidance related to sexual orientation discrimination under Title VII, other circuit courts found that Title VII does not apply to discrimination based on sexual orientation. For example, the 11th Circuit Court of Appeals (Alabama, Florida, and Georgia) recently ruled that Title VII does not include any protections for discrimination related to sexual orientation. For many years, federal courts generally rejected discrimination claims based on sexual orientation under Title VII. The Equal Employment Opportunity Commission, on the other hand, viewed “sex” broadly under Title VII as covering sexual orientation and gender identity.

Why Has There Been Recent Attention on the Issue?

In 2017, the 7th Circuit Court of Appeals (Illinois, Indiana, and Wisconsin) held that discrimination based on sexual orientation is sex discrimination under Title VII. This case is particularly significant because it is the first time a federal circuit court interpreted Title VII as covering discrimination based on sexual orientation. In Kimberly Hively v. Ivy Tech Community College, a lesbian adjunct faculty member filed a claim under Title VII alleging that school officials neither renewed her contract nor hired her when she applied multiple times for full-time positions because of her sexual orientation. The majority wrote that if the plaintiff had been dating a man, she would not have experienced this type of discrimination. Accordingly, the court explained she encountered discrimination only because she is a woman dating another woman, thereby constituting sex discrimination. The court reasoned that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man … dates or marries a same-sex partner, is a reaction purely and simply based on sex,” which falls under the purview of Title VII.

In a concurring opinion, the highly influential 7th circuit judge, Richard Posner, wrote:

[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.

This split among federal circuits is likely to invite Supreme Court review, possibly resulting in nationwide protections for employees who are LGBT. The developments in this area will be important to monitor as it relates to K–12 schools.

Are There Other Protections Beyond Title VII?

Public school personnel who experience sexual orientation discrimination could also rely on the Equal Protection Clause of the 14th Amendment as a viable legal avenue. Even so, school officials would likely only need to have a rational basis to create a policy that treats LGBT teachers differently than their peers. Also, approximately 25 states and a variety of cities prohibit discrimination based on sexual orientation under local laws. For example, a lesbian teacher in California relied on a state law in her sexual orientation discrimination complaint against her school board, which ended up settling with her for $140,000.

Educators not living within the jurisdiction of the 7th Circuit or within one of the 25 states or various municipalities with antidiscrimination provisions may not be protected from sexual orientation discrimination. As noted in Hively, the current case law creates a paradoxical legal landscape where “a person can be married on Saturday and then fired on Monday for just that act.” Thus, this is why the answer to the above hypothetical still depends-in the 7th Circuit and within 25 states and various cities, this teacher would have specific protections.

What Does This Mean for K–12 Schools?

While courts continue to sort out this issue, school boards in the 7th Circuit will need to comply with Hively. Specifically, similar to discriminatory practices based on religion or race, all school employees in the 7th Circuit who experience discrimination due to their sexual orientation now have fully recognized legal claims under Title VII. Employers should therefore take measures to cover sexual orientation as a protected category when providing antidiscrimination and antiharassment training to employees.

When updating policies in light of Hively, school officials in these states should also forbid harassment and retaliation due to sexual orientation. School officials should thus familiarize themselves with applicable state and local laws, both to protect their employees and to avoid potentially costly litigation. It is also important to note that rulings interpreting Title VII are often used to evaluate claims under Title IX. As a result, some argue that Hively may impact some of the K–12 legal issues focusing on gender identity and sexual orientation under Title IX.

This is certainly an issue that bears watching for future developments.  

Suzanne E. Eckes, JD, PhD, is a professor at Indiana University. She has published widely on school legal matters, including co-editing The Principal’s Legal Handbook. Charles J. Russo, JD, EdD, is the Panzer Chair in Education and an adjunct professor of law at the University of Dayton in Ohio. He has published extensively on school legal matters, including editing The Yearbook of Education Law.