Further emphasizing the split in authority on sexual orientation discrimination, last month the Eastern District of Missouri dismissed plaintiff Mark Horton’s claim that Midwest Geriatric Management LLC (“MGM”) violated Title VII by rescinding an offer of employment after learning that he is gay. Horton v. Midwest Geriatric Mgmt., LLC, Case No. 4:17CV2324, 2017 U.S. Dist. LEXIS 209996 (E.D. Mo. Dec. 21, 2017).

Horton asserted that MGM unlawfully discriminated against him on the basis of sex and religion. Horton’s sex discrimination claim comprised three theories: (1) sexual orientation is necessarily discrimination based on sex; (2) discrimination on the basis of his association with a person of a particular sex (his male partner); and (3) nonconformity with sex stereotypes.  In granting MGM’s motion to dismiss, the district court cited Eighth Circuit precedent from a 1989 holding that Title VII does not cover discrimination based on sexual orientation, and concluded that both the sex and religious discrimination claims were merely refashioned sexual orientation discrimination claims.

The Eighth Circuit precedent, which comports with a recent decision in the Eleventh Circuit, contrasts with the EEOC’s position, adopted by the neighboring Seventh Circuit in Hively v. Ivy Tech Community College. In that case, the Seventh Circuit held that “a person who alleges that [he] experienced employment discrimination on the basis of [his] sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hively v. Ivy Tech Cmt. College, 853 F.3d 339, 351-52 (7th Cir. 2017). The Hively court based its holding on a conclusion that there is no difference between a gender nonconformity claim and one based on sexual orientation. Thus, “a policy that discriminates on the basis of sexual orientation . . . is based on assumptions about the proper behavior for someone of a given sex.” Id. at 346. The Court further cited a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Id. at 351.  While the Seventh Circuit is the first federal appellate court to find sexual orientation covered by Title VII, the Second Circuit is considering the question in en banc review.

Unlike the Seventh Circuit’s approach, the Eighth Circuit draws a distinction between discrimination based on sex stereotypes and that based on “notions of heterosexuality and homosexuality,” finding that Title VII protects against the former but not the latter. Though the basis for the claim is not always obvious, here—because Horton directly tied each of his claims to his homosexuality—the Court did “not struggle with exactly where to draw the line between actionable discrimination based on what is alleged to be gender non-conforming behavior and non-actionable discrimination based on sexual orientation.”

Despite the circuit split and legal uncertainty on the federal level, employers should be aware that many state and local laws offer protections against sexual orientation discrimination. And properly pled gender nonconformity claims may be pursued even in jurisdictions that do not recognize sexual orientation discrimination.  Thus, employers should train their employees to treat all employees equally in the workplace to prevent such claims.