In an October 2015 post, I discussed whether the federal statute that prohibits discrimination on account of “sex” may be extended to protect employees who suffer discrimination or harassment due to their sexual orientation. Will Protections Against Sex Based Discrimination Be Extended to Sexual Orientation? There currently are no federal or Tennessee anti-discrimination statutes that expressly address sexual orientation as a prohibited basis for workplace discrimination or harassment. There also is very little likelihood of new legislation being enacted for that purpose either by the Tennessee legislature or United States Congress (at least as presently constituted). Consequently, a number of litigants, including the United States Equal Employment Opportunity Commission (EEOC), are asking the federal courts to extend the definition of discrimination on account of “sex” within Title VII of the Civil Rights Act of 1964 to include workplace discrimination on account of sexual orientation. As I previously discussed, a number of federal appeals courts have in the past refused to extend the definition of “sex” beyond gender based considerations. Those decisions, however, pre-date the recent judicial victories achieved by the LGBT community on issues such as same sex marriage. Consequently, these litigants are hopeful that federal courts might be willing to undertake a fresh analysis of the issue given the significant gains achieved by the LGBT community in other areas of the law.

In July 2015, the EEOC issued an opinion pertaining only to federal employees holding for the first time that “sexual orientation is inherently a sex-based consideration,” such that discrimination or harassment based on sexual orientation is a violation of Title VII. Following that, on March 1, 2016, the EEOC issued a press release announcing that it has filed its first two lawsuits against private sector employers seeking redress under Title VII for workplace harassment of gay and lesbian employees. Those suits were filed in federal district courts situated in Philadelphia and in Baltimore.

Yet, while the EEOC is seeking to extend Title VII’s definition of “sex” beyond simply gender, federal courts thus far are not accepting the argument. Within less than two weeks following the EEOC’s press release, a federal district court in New York dismissed a sexual orientation harassment claim under Title VII by a gay man on the basis that the language of Title VII and its legislative history provide no basis to extend its protections to claims of discrimination based on sexual orientation. In reaching this conclusion, the court relied on a 2000 decision by the United States 2nd Circuit Court of Appeals (which is the appellate court over federal district courts in New York) reaching that same conclusion. The district court also relied heavily on the fact that Congress has on numerous occasions in the past considered bills that would have extended Title VII’s protection to gay and lesbian employees, but refused to take that step. These recent developments on the subject of workplace discrimination against LGBT employees demonstrate an important fact. While the EEOC has the authority to investigate claims of workplace discrimination and to pursue enforcement activities based on its interpretation of federal workplace anti-discrimination statutes, the final opinion on the subject belongs to the courts. There are several similar claims currently pending in other federal district courts and courts of appeal. We will continue to monitor those and report as more news develops. At this stage, however, I would be surprised if a significant number of federal courts make the interpretational leap suggested by the EEOC. Ultimately, extension of employment anti-discrimination protections to LGBT employees most likely will have to occur through legislative action rather than judicial interpretation. That said, I continue to recommend that employers take the steps I outlined in my previous post Will Protections Against Sex Based Discrimination Be Extended to Sexual Orientation? to protect LGBT employees from acts of workplace harassment.

If you would like to speak to John Lawhorn on this or any other subject, he may be reached at (865) 546-9321.