Over the last three years I have posted several times concerning efforts by the Equal Employment Opportunity Commission (EEOC) and private litigants to have federal courts construe federal statutory protections against workplace discrimination on the basis of “sex” to include claims of discrimination on account 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 consequently refused to extend anti-discrimination protections to LGBT employees.
As I have reported in my recent postings, the latest efforts to extend Title VII protection to claims of sexual orientation discrimination have been more successful. Many of these claims have been prosecuted by the EEOC, with multiple instances of success in federal trial courts. Several of these decisions were then affirmed by federal circuit courts of appeal. One federal appellate court, however, reached the opposite conclusion, holding that Title VII cannot be construed to extend its protections to claims of discrimination based on sexual orientation. This contrary holding thus created a split of authority among federal circuits, which provides a basis for the United States Supreme Court to resolve the conflict.
The U.S. Supreme Court recently accepted appeals in two of those cases. In addition, it agreed to hear an appeal in a third case which raises a related, but somewhat different question under Title VII. This case, from the Sixth Circuit Court of Appeals (which covers Tennessee), will address whether the prohibition of discrimination because of “sex” in Title VII includes discrimination based upon an employee’s transgender status. The United States Supreme Court will not open its next term until October 2019. These cases have yet to be argued before the Court and I do not expect an opinion in any of them until late Spring or early Summer 2020.
The effort to extend Title VII protections to claims of sexual orientation and transgender discrimination has been fast developing. If you are an employer with 15 or more employees and you have not already undertaken efforts to treat LGBT employees as within those protected by Title VII, you certainly should do so at this point. That should include updating all of your written EEO/non-discrimination policies and anti-harassment policy. Adopting that strategy is certainly an exercise in “better safe than sorry.”
If you would like to speak to John Lawhorn on this or any other matter, he may be reached at (865) 546-9321.