Earlier this month we noted that a federal court in Colorado ruled that the Fair Housing Act (FHA) prohibits discrimination based on sexual orientation (although sexual orientation is not contained in the text of the statute). In that case, the district court judge concluded that ownership could not deny housing to a resident simply because the resident fails to adhere to gender stereotypes by being attracted to or married to a member of the same sex. As the case then settled, we will not get further review (at least for now) by a United States Court of Appeals as to whether the FHA prohibits sexual orientation discrimination.

So, while we may not get an appellate FHA decision on this point, it is instructive to examine how other appellate courts have ruled in similar cases brought under what is known as Title VII (which covers employment discrimination and is typically treated similarly by the courts as are Title VIII cases [which involve fair housing]). Unsurprisingly, recent trends in Title VII sexual orientation cases demonstrate a rift between the circuit courts.

To illustrate, the Seventh Circuit recently held that Title VII’s protections extend to members of the LGBT community. The case is Hively v. Ivy Tech Community College of Indiana, in which a lesbian alleged that her employer unlawfully discriminated against her because of her sexual orientation by refusing to promote her and by failing to renew her contract. The Seventh Circuit agreed. While it acknowledged that nearly all of the circuit courts, including panels of the Seventh Circuit, previously ruled that Title VII does not prohibit sexual orientation discrimination, the court determined that those rulings were incorrect, especially when viewed in conjunction with the growing number of Supreme Court decisions related to discrimination on the basis of sexual orientation. Noting the growing trend of prohibition against sexual orientation discrimination, the court held that claims arising from discrimination based on sexual orientation are cognizable under Title VII.

However, only one month before Hively, the Eleventh Circuit reached the opposite conclusion in Evans v. Georgia Regional Hospital. In that case, a lesbian employee alleged that her employer unlawfully discriminated against her based on her gender and sexual orientation, because she presented herself in a non-traditional manner by sporting a short hairstyle and wearing a man’s uniform (although she did not otherwise broadcast her sexuality). While the Eleventh Circuit noted that gender nonconformity claims are cognizable under Title VII, it held that precedent bound it to rule that Title VII does not prohibit sexual orientation discrimination. Like the Hively court, the Evans court also noted that nearly every circuit court addressing the issue has explicitly held that sexual orientation discrimination claims are not cognizable under Title VII.

So, what happens next? With a split of opinion between the circuits, there is at least some hope that the Supreme Court may take a case and provide guidance as to the state of the law (at least with regard to Title VII). In the meantime, a best practice for professional apartment management would be to err on the side of caution and avoid discriminating on the basis of sexual orientation or gender identity. As the Seventh Circuit noted, sexual orientation protections have greatly expanded in recent years, and that trend will likely continue to prove true. And, as always, in addition to federal law, you should check the state, city, and/or county laws in your jurisdiction as they may already prohibit sexual orientation discrimination.

Just A Thought.

Article by Christian Moffitt.