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Can employers discriminate on the basis of sexual orientation or gender identity?

by | Oct 6, 2016 | Discrimination

A troubling appeals court ruling muddies the waters.


One federal appeals court recently ruled that sexual orientation is not a protected class under federal discrimination law. Other courts have previously construed sexual orientation to fall under the umbrella of the Civil Rights Act even though it is not spelled out as such.

Does this development put gay and lesbian employees or job candidates in limbo? What might it mean for transgender workers?


U.S. government employees are insulated by a second layer of federal statute and policy that specifically prohibits LGBT discrimination. In the private sector, the issue is less settled, especially in light of state legislatures (such as North Carolina) that may be emboldened by the recent 7th Circuit ruling.

Isn’t sexual orientation discrimination outlawed by Title VII?

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, national origin, religion and sex (gender). Sexual harassment and pregnancy discrimination, though not specifically mentioned in the act, have since been upheld as forms of sex discrimination. The U.S. Supreme Court has applied Title VII to certain forms of sexual orientation and gender identity discrimination – such as same-sex harassment and gender stereotypes – but without establishing a blanket prohibition.

An August decision by the 7th U.S. Circuit Court of Appeals drew that line, concluding that sexual orientation does not merit Title VII protection as sex discrimination. This is contrary to other circuits that have interpreted the Civil Rights Act to protect gay, lesbian, bisexual and transgender individuals from mistreatment. It also directly contradicts a 2015 declaration by the Equal Employment Opportunities Commission (EEOC) that sexual orientation discrimination is actionable sex discrimination under Title VII. The 7th Circuit  (in Hively v. Ivy Tech Community College) acknowledged contradictions and unfairness in the firing of a lesbian professor, but ultimately rested on its own precedents and Congress’s consistent refusal to affirm sexual orientation.

The Office of Personnel Management (OPM), which oversees all federal agencies, specifically recognizes gender identity and sexual orientation in its anti-discrimination policies. This applies to hiring, job assignments, promotion, disciplinary actions, family leave, insurance benefits and other facets of employment. OPM policy also prohibits discriminatory treatment of LGBT employees in relation to sick leave for transition, restroom choice, preferred names and pronouns, gender-specific dress and similar issues.

The U.S. Supreme Court may eventually weigh in. Perhaps Congress will amend Title VII. Until then, LGBT workers – even those in federal employment – may have reason to be nervous.