By Diane Buisman
A recent string of federal appeals court cases regarding sexual orientation discrimination has shone a light on an area of open interpretation under federal law. Under Title VII of the Civil Rights Act, individuals are protected from discrimination based on sex, but the law doesn’t explicitly encompass protection based on sexual orientation. The federal Equal Employment Opportunity Commission (EEOC) has long interpreted Title VII’s protection to extend to individuals based on their sexual orientation, rationalizing that being discriminated against for failing to conform to traditional gender roles is a form of sex-based discrimination.
However, while the EEOC is clear about its position on sexual orientation discrimination, the courts have not been so straightforward. In the past month, three different decisions from federal appeals courts highlight the uncertainty around extending Title VII to protect individuals based on their sexual orientation:
- The U.S. Eleventh Circuit Court of Appeals ruled that a lesbian security officer couldn’t bring a sexual orientation discrimination claim under Title VII, stating unequivocally that discrimination “based on sex” doesn’t encompass discrimination based on sexual orientation (Evans v. Georgia Regional Hospital, 11th Cir, March 2017).
- The U.S. Second Circuit Court of Appeals similarly ruled that Title VII doesn’t offer protection from discrimination based solely on sexual orientation, but allowed the employee to move forward with his claims based on “gender stereotyping.” In this particular case, the employee presented sufficient evidence of being harassed for his appearance and mannerisms, which were attributed to his sexual orientation, but which ultimately could have been discrimination based on his perceived nonconformity to a traditional male gender role. In its written opinion, the Second Circuit acknowledged the confusion among the courts with regard to these claims and noted that “it may well be that the Supreme Court will ultimately address it” (Christiansen v. Omnicon Group, Inc., 2nd Cir, March 2017).
- The U.S. Seventh Circuit Court of Appeals decided in the opposite direction of both the Eleventh and Second Circuits, ruling that discrimination based on sexual orientation is a form of discrimination “based on sex” and an individual can bring a claim under Title VII without necessarily needing to show evidence of gender stereotyping (Hively v. Ivy Tech Community College of Indiana, 7th Cir, April 2017).
Tips: With this significant divide among the federal courts of appeal, it seems likely that the Supreme Court will step in and decide the issue once and for all. Until then, employers should be aware that the EEOC will continue to enforce Title VII to protect individuals from sexual orientation discrimination. Furthermore, for employers in California, Oregon, and Washington, state law provides specific legal protection for individuals based on their sexual orientation, so there is no ambiguity about whether an employee can bring a claim for discrimination based on sexual orientation. For these reasons, employment attorneys advise that you treat sexual orientation as a protected class and ensure that your employees are not being treated differently based on their sexual preference.
Diane Buisman is an employment attorney & legal director at Vigilant