In the last year, I have twice posted on the topic of whether federal statutory protections against discrimination on account of “sex” will be extended to claims of sexual orientation discrimination. [10/29/15 and 3/21/16 posts] This topic became a regular subject of discussion among employment law practitioners and their clients following the U.S. Supreme Court’s decision in 2015 requiring states to provide marriage rights to same sex couples.

There currently are no federal or Tennessee statutes that prohibit discrimination in employment on account of sexual orientation. Recently, however, several individual employees, as well as the Equal Employment Opportunity Commission (EEOC) filed multiple lawsuits in federal courts claiming that Title VII of the Civil Rights Act of 1964 should be construed to prohibit discrimination and harassment on account of an employee’s sexual orientation. Title VII prohibits discrimination on account of various characteristics, including “sex.” Historically, federal courts have uniformly interpreted the term “sex” in Title VII to mean gender, so that sex-based discrimination simply means treating an employee differently on account of being male or female.

In July 2015, however, the EEOC issued a ruling binding only on federal agencies that “sexual orientation is inherently a sex-based consideration,” so that discrimination on the basis of it is a violation of Title VII. While that ruling pertained only to the federal employment sector, opinions of the EEOC are often regarded as persuasive authority by federal courts when applying Title VII to private employers.

In March 2016, the EEOC filed its first two lawsuits against private sector employers on behalf of employees seeking redress under Title VII for workplace harassment of gay and lesbian employees. At that same time several other such lawsuits were winding through the federal court system, including one case pending in the United States 7th Circuit Court of Appeals, which involved an appeal of a federal trial court’s dismissal of such a claim. On July 28, 2016, the 7th Circuit Court of Appeals issued an opinion in that case reaffirming its own prior decisions, as well as prior decisions of other federal circuit courts “that Title VII does not redress sexual orientation discrimination.” This is the first federal appeals court decision on the subject since the U.S. Supreme Court decision guaranteeing same sex marriage rights and after the EEOC issued its opinion.

Employers need to be aware, however, that while federal case law thus far clearly holds that Title VII does not provide a remedy for discrimination based on sexual orientation, the U.S. Supreme Court has recognized that employment discrimination on account of “gender non-conformity” (not complying with typical gender stereotypes as to appearance, mannerisms, and dress) is discrimination on account of “sex” and therefore a violation of Title VII. The problem with this distinction, as pointed out by the 7th Circuit Court of Appeals in its recent opinion, is that differentiation between discrimination on account of sexual orientation versus gender non-conformity is “elusive.” Employers subject to Title VII are likewise left in the position of trying to discern the difference.

If you are an employer or a human resources representative of an employer subject to Title VII, it is important to understand that while Title VII does not prohibit sexual orientation discrimination, there is potential liability for taking adverse action against an employee because he/she does not conform to certain gender expectations or stereotypes. You should therefore treat claims of discrimination or harassment by LGBT employees as serious and undertake immediate efforts to investigate and remedy any conduct that could give rise to a gender non-conformity discrimination claim. If you are an LGBT employee who suffers discrimination or harassment in your workplace, you may have a remedy under Title VII even though discrimination on account of sexual orientation in and of itself is not against the law. In either situation, you should consider obtaining the assistance of legal counsel familiar with the development of this area of the law under Title VII.

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