In the United States, Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. Title VII, which applies to all employers with 15 or more employees, is one of several major U.S. employment statutes that is enforced by the Equal Employment Opportunity Commission (EEOC). Title VII has never been amended to add workplace protections on the basis of sexual orientation or gender identity. Yet gender remains protected, leaving courts trying to determine what is gender discrimination versus sexual orientation discrimination. The EEOC recently issued an opinion finding that sexual orientation discrimination is inherently a form of sex discrimination illegal under Title VII; however, this EEOC opinion is not binding on federal courts in Title VII law suits. A recent Court of Appeals opinion has addressed the issue in detail.
The Seventh Circuit Court of Appeals decision in Hively v. Ivy Tech Community College comprehensively analyses the current state of confusion in federal law as to the distinction between gender non-conformity and sexual orientation discrimination. The plaintiff in the Hively case claimed the college refused to interview her for various full-time positions because of her sexual orientation. Although the Court of Appeals discussed various court decisions relating to the lines between sex stereotyping discrimination and sexual orientation discrimination, it ultimately held it was bound by its own precedent to continue to reject sexual orientation discrimination claims, while still allowing gender non-conformity claims. (The court’s decision has been appealed by the plaintiff.) However, the court’s examination of the larger issues seems ripe for citation in future court opinions supporting broader protections for LGBT employees.
Moving forward, if the legislature were to finally amend Title VII to include ‘sexual orientation’ as a protected class, or if the U.S. Supreme Court were to interpret discrimination based on ‘sex’ to include ‘sexual orientation,’ the impact would be felt nationwide. This kind of pronouncement would not only impact those who have raised discrimination claims, but could also put pressure on state legislatures that have not banned sexual orientation discrimination.
In the meantime, employers should be aware of state and local anti-discrimination laws which may provide protections against sexual orientation discrimination. Seek advice from your Ally Law member firm employment counsel to determine if your company’s policies and procedures meet national, state, and local laws and guidelines in your country as to all types of employment discrimination. For more information about Ally Law member firm services in this area, contact us at firstname.lastname@example.org.