When the Supreme Court legalized gay marriage, it was clear that the tide had shifted, and employers altered their benefits and leave practices to comply with the new definition of spouse. However, there is no Federal statute that protects against discrimination on the basis of sexual orientation or gender identity. Over the past several years, many states have created these statutory protections, but efforts to amend Title VII to specifically protect these groups at the federal level have failed.
Instead, the courts have stepped in and found protection for discrimination against sexual orientation under the basis of Title VII’s prohibition on sex-based discrimination. Until last year, these findings had been limited to discrimination based on sex-based stereotypes or nonconformity to gender norms (e.g. a woman did not dress in an feminine enough manner).
Late last year, in a surprise move, the Seventh Circuit, one of the most conservative courts in the country held that Title VII prohibits discrimination on the basis of sexual orientation. The Eleventh Circuit reached the opposite conclusion, creating a split, and the Supreme Court declined to take up the Eleventh Circuit case in December.
On Monday, in a divided en banc opinion, the Second Circuit held the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extends to sexual orientation. The EEOC and Department of Justice made opposing arguments in the case, and the Court ultimately sided with the EEOC. All of this means the Supreme Court may get another chance to make the ultimate determination on the issue.
If you are in a state that does not already prohibit discrimination on the basis of sexual orientation, and you are not currently including sexual orientation as a protected group in your anti-discrimination and EEO policies, it may be time to reconsider your position. The laws are changing quickly, and it is better to be out ahead than caught behind. Not sure if you are in compliance with state and federal anti-discrimination laws? Give us a call.