Can employers discriminate against a person on the basis of their sexual orientation?
Until this spring, the answer was yes. For years, federal courts have said that bias against gays and lesbians is not covered by Title VII of the Civil Rights Act. Then, last spring, for the first time in the history of the 1964 law, a federal appeals court extended the protections of Title VII beyond biological identity to include sexual orientation.
As historic as that decision is, it set up a conflict among the 12 regional courts of appeal, which only the U.S. Supreme Court can resolve. Last week, appealing a case out of Georgia, Lambda Legal asked the high court to do just that.
By itself, the conflict is good enough reason for the Supreme Court to accept the case. But there’s more: The Justice Department and the EEOC have taken opposite positions on whether Title VII’s prohibition of discrimination based on sex extends to the GLBT community.
Here’s the background on the two appellate cases:
- The 11th District Appeals Court voted 2-1 last spring against a lesbian security guard who said she endured hostility and was eventually forced from her job at a hospital in Savannah, GA because her dress and manner didn’t conform to female gender norms. The court said Title VII protection did not extend to sexual orientation.
- The 7th District Appeals Court a month later took the opposite view, ruling 8-3 that the Civil Rights Act Title VII mention of sex is broad enough to include sexual orientation, and not just anatomy. The case was brought by a teacher who claimed she wasn’t hired full-time by an Indiana community college because of her sexual preference.
After the 7th District court’s decision, the federal appeals court in New York agreed to a rehearing by the full court of a 3 judge decision in a Title VII employment case involving a fired gay man. The 3 judge panel upheld the firing, ruling Title VII does not include sexual orientation. That rehearing will be held this month.
What is especially significant about the New York case is that the Justice Department has filed a brief supporting the employer. The EEOC filed a brief arguing Title VII should be read to protect gay, lesbian and bisexual employees.
Among the points the Justice Department makes is all the circuit courts of appeals that have considered the issue have ruled against extending Title VII protection. That is until the Chicago appeal court ruling, which the Justice Department says is wrong.
In addition, the government — the Justice Department represents the administration — points out that if Congress had meant to include the GLBT community it has plenty of opportunity to do so. Every year since 1979 a bill to extend the reach of Title VII to cover sexual orientation has been introduced but never passed.
The EEOC, in its friend of the court brief, argues that discrimination based on orientation “(1) involves impermissible
sex-based considerations, (2) constitutes gender-based associational discrimination, and (3) relies on sex stereotyping.” That, says the EEOC, brings in squarely under Title VII.
What does this mean for HR leaders?
First, most, if not all states and many municipalities, have their own laws regarding employment discrimination. Some states like California and New York have provisions specifically extending protection to gay, lesbian, bisexual and, in many cases, transgender employees.
Second, in the states that are part of the 7th Circuit — Illinois, Indiana and Wisconsin — Title VII protection covers discrimination based on sexual orientation.
Finally, because of the 7th Circuit Appeals Court’s decision, other appeals courts may be emboldened to break with precedent and extend Title VII protections. Relying on past decisions, particularly in the more liberal circuit, could be a costly mistake.
Good practice is to investigate all employee complaints of sexual orientation discrimination and, before a situation arises, consult an employment attorney for advice.