Previous courts have ruled same-sex discrimination does not violate Title VII
Two separate appellate courts have interpreted the Civil Rights Act to prohibit workplace discrimination and harassment based on sexual orientation and gender stereotyping. The recent rulings by the Second Circuit and Seventh Circuit break with established legal precedents. But they align with a sea change of decisions by some lower courts and the EEOC that such discrimination is illegal.
On the other hand, the 11th Circuit went against the tide, ruling in March that Title VII does not extend to sexual orientation. As with same-sex marriage in 2015, many speculate – and hope – these opposing interpretations will be settled by the Supreme Court in the near future.
Appellate courts look past strict interpretation to find Title VII protection for sexual orientation.
The long-running debate is whether sexual orientation discrimination (which is not specifically mentioned in the Civil Rights Act) is a form of sex discrimination (which is prohibited under Title VII). The recent Court of Appeals cases hinge on discrimination against gays and lesbians in the form of hiring decisions, workplace harassment and termination of employment on the basis of gender norms or perceived sexual orientation.
- Sexual orientation discrimination illegal – On April 4, the Seventh Circuit Court of Appeals (Chicago)ruled in favorof a lesbian college instructor who says she was denied full-time positions because of her sexual orientation. The Seventh Circuit is the highest court to interpret Title VII as covering sexual orientation discrimination.
- Sexual orientation harassment illegal– By unanimous vote on March 27, the Second Circuit Court of Appeals (New York)revived a lawsuitby an ad executive subjected to a campaign of humiliation and harassment by his supervisor because he was gay. A federal judge, relying on Second Circuit precedents from 2000 and 2005, had ruled that he had no standing to sue.
- Not so fast – On March 10, the 11th Circuit Court of Appeals (Georgia) dismissed the lawsuit of a lesbian hospital worker who alleged she was subjected to a hostile work environment because she does not dress or act traditionally feminine. The court reached way back to 1979 circuit precedent to conclude that Title VII does not extend to harassment on the basis of sexual orientation.
Have you experienced or witnessed LGBTQ discrimination?
In these landmark cases, the circumstances were not about sexual orientation, per se. As is often the case, the plaintiffs were subjected to discrimination, harassment or retaliation for “gay behavior” — bucking traditional gender norms (clothing, hairstyle, mannerisms) or being out of the closet about their sexual identity.
Federal employees are already protected from LBGTQ discrimination, under court precedent and government policy. Such protection is hit-and-miss in the private sector, depending on laws at the state or city level and the employer’s own policies. The processes are different for government employees, such as provisions for mandatory arbitration. More state and federal courts are likely to follow the Seventh Circuit and Second Circuit in declaring that such behavior will not be tolerated in the workplace.
If you have been subjected to sexual orientation or gender identity discrimination, get legal help. Whether you are a private or public employee, an employment law attorney can explain where you stand and what your options are.