In the last 9 months, I have twice posted on efforts by the Equal Employment Opportunity Commission (EEOC) and a number of private litigants to have federal courts construe federal statutory protections against certain forms of workplace discrimination to include discrimination on the basis of sexual orientation. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate against employees on account of “race, color, religion, sex, or national origin. . ..” During the last 40 years, a number of federal courts, including federal appellate courts, regularly rejected efforts to interpret the term “sex” as including sexual orientation and thereby refused to extend anti-discrimination protections to LGBT employees. This was often done on a perfunctory basis and without much reflection or debate on the question.
More recent efforts, however, have proven to be more successful. With the EEOC’s backing, several federal trial courts have reevaluated these previous decisions refusing to extend Title VII protection and concluded that LGBT employees asserting those claims can proceed. A very significant milestone occurred on April 4, 2017, when a United States federal court of appeals held for the first time that Title VII’s prohibition against “sex” discrimination protects employees against discrimination on account of their sexual orientation. What makes this decision even more significant is it was decided by the full 7th Circuit Court of Appeals (referred to as en banc) rather than a panel of only 3 judges.
This recent decision of the 7th Circuit Court of Appeals does not directly impact Tennessee employers. Tennessee is situated within the jurisdiction of the federal 6th Circuit Court of Appeals. Current 6th Circuit precedent holds that sexual orientation discrimination is not prohibited by Title VII. That precedent, however, like in the 7th Circuit, is currently under challenge and litigants no doubt will ask the 6th Circuit to reevaluate its prior holdings within the context of 21st century American society. Ultimately, there can be little doubt this issue will proceed to the United States Supreme Court for ultimate review.
Employers need to understand that while current law in Tennessee may not expose employers to liability on account of claims of sexual orientation discrimination, one judicial decision can immediately change years of legal precedent. As this is a fast developing area of employment law, I urge employers to consider obtaining legal advice whenever addressing complaints of discrimination brought to them by LGBT employees or when considering any action that may be perceived as unfair or discriminatory on account of an employee’s sexual orientation. Experienced employment counsel can assist you when addressing these situations and hopefully in avoiding potential future liability.
If you would like to speak to John Lawhorn on this or any other matter, he may be reached at (865) 546-9321.