Supreme Court Asked to Decide If Title VII Covers Sexual Orientation

Can employers discriminate against a person on the basis of their sexual orientation?

Until this spring, the answer was yes. For years, federal courts have said that bias against gays and lesbians is not covered by Title VII of the Civil Rights Act. Then, last spring, for the first time in the history of the 1964 law, a federal appeals court extended the protections of Title VII beyond biological identity to include sexual orientation.

As historic as that decision is, it set up a conflict among the 12 regional courts of appeal, which only the U.S. Supreme Court can resolve. Last week, appealing a case out of Georgia, Lambda Legal asked the high court to do just that.

By itself, the conflict is good enough reason for the Supreme Court to accept the case. But there’s more: The Justice Department and the EEOC have taken opposite positions on whether Title VII’s prohibition of discrimination based on sex extends to the GLBT community.

Here’s the background on the two appellate cases:

  • The 11th District Appeals Court voted 2-1 last spring against a lesbian security guard who said she endured hostility and was eventually forced from her job at a hospital in Savannah, GA because her dress and manner didn’t conform to female gender norms. The court said Title VII protection did not extend to sexual orientation.
  • The 7th District Appeals Court a month later took the opposite view, ruling 8-3 that the Civil Rights Act Title VII mention of sex is broad enough to include sexual orientation, and not just anatomy. The case was brought by a teacher who claimed she wasn’t hired full-time by an Indiana community college because of her sexual preference.

After the 7th District court’s decision, the federal appeals court in New York agreed to a rehearing by the full court of a 3 judge decision in a Title VII employment case involving a fired gay man. The 3 judge panel upheld the firing, ruling Title VII does not include sexual orientation. That rehearing will be held this month.

What is especially significant about the New York case is that the Justice Department has filed a brief supporting the employer. The EEOC filed a brief arguing Title VII should be read to protect gay, lesbian and bisexual employees.

Among the points the Justice Department makes is all the circuit courts of appeals that have considered the issue have ruled against extending Title VII protection. That is until the Chicago appeal court ruling, which the Justice Department says is wrong.

In addition, the government — the Justice Department represents the administration — points out that if Congress had meant to include the GLBT community it has plenty of opportunity to do so. Every year since 1979 a bill to extend the reach of Title VII to cover sexual orientation has been introduced but never passed.

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The EEOC, in its friend of the court brief, argues that discrimination based on orientation “(1) involves impermissible
sex-based considerations, (2) constitutes gender-based associational discrimination, and (3) relies on sex stereotyping.” That, says the EEOC, brings in squarely under Title VII.

What does this mean for HR leaders?

First, most, if not all states and many municipalities, have their own laws regarding employment discrimination. Some states like California and New York have provisions specifically extending protection to gay, lesbian, bisexual and, in many cases, transgender employees.

Second, in the states that are part of the 7th Circuit — Illinois, Indiana and Wisconsin — Title VII protection covers discrimination based on sexual orientation.

Finally, because of the 7th Circuit Appeals Court’s decision, other appeals courts may be emboldened to break with precedent and extend Title VII protections. Relying on past decisions, particularly in the more liberal circuit, could be a costly mistake.

Good practice is to investigate all employee complaints of sexual orientation discrimination and, before a situation arises, consult an employment attorney for advice.

John Zappe is the editor of and a contributing editor of John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.


11 Comments on “Supreme Court Asked to Decide If Title VII Covers Sexual Orientation

  1. Ignorance is the root of discrimination, especially when it comes to gay rights and equal rights laws. If I remember correctly, this is the USA with a Constitution that gives all citizens the right to equality. It doesn’t say equality for all, except homosexuals who are sinners because it is against the Bible. It should never have taken a generation to allow gay marriage, but the efforts of conservative ignorant politicians seems to want to prolong the battle to give equality to all Americans, not just the conservative base.

    1. While I’m not in favor of sexual orientation discrimination, the Constitution does not say “equality for all”. The 14th says that persons shall not be denied “equal protection” of the laws. Therefore as in this case, the question is does the law, Title Vll, include sexual orientation as a protected class.

  2. This is not about equal rights, or equal employment for the LGBTQ ers, it is about special rights and privilages for them over anyone and everyone.

    1. Wrong….Exactly how is it “special privileges” to just want the same rights and treatment as the straights have?….Huh?…Huh?
      What if a company owned by gays (of which there are many) decided to fire any employees that were found out to be straight?
      What if a gay owned company refused to hire someone because they looked too “straight” or because they happened to mention their spouse of the opposite sex?
      And you want to talk about “special privileges”?……What about all the straight christians who want to be “above the law” and be able to refuse to serve gays in their place of business?…..All other people and businesses must obey the law and treat everyone equally.
      But apparently christians think they are better than everyone else….and the “religious freedom” bit does not hold water because even though almost all other religions condemn homosexuality, ONLY the christians are making a big stink about it.
      So you are 100% wrong….this IS about equal rights and equal treatment for gays.
      And the ONLY people wanting “special privileges” are the evangelical christians and conservative straights who want to be above the law so that they can continue to discriminate against gays and transgender folks.

    2. A special right to be equally considered for jobs, promotions, housing, etc like any other person who doesn’t give you a feeling of “ickyness”. That’s not a special right. It’s time for you to get over yourself.

  3. “Sex,” “Gender,” and “Sexual Orientation” are three separate things. If the statute says sex, that means male or female. If people want to include gender and sexual orientation in Title VII then you need to amend the statute.

    1. You are not a judge. It’s to the courts to determine what the meaning and scope of those laws are. The Supreme Court is the ultimate interpreter. If Congress disagrees, they can change the law to specifically state that it doesn’t mean sexual orientation.

  4. IMHO, it comes down to varying concepts of what “freedom” is:
    1) On one side, it is the “freedom” to legally discriminate against others
    2) On the other side, it is the “freedom” not to be legally discriminated against by others.

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