Emerging LGBTQ Protections: Two Circuits Expand Coverage of Title VII

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Nexsen Pruet’s webinar series presentation last month was on Hot Topics in Employment Discrimination and included a segment on the ABC’s of LGBTQ issues in the workplace.  As we discussed in the webinar, the Fourth Circuit Court of Appeals, which covers North and South Carolina, has not determined that Title VII prohibits employment discrimination because of an employee’s sexual orientation or gender identity. 

Two weeks ago, however, a second federal appellate court – the Second Circuit Court of Appeals, which covers employers in New York, Connecticut and Vermont – ruled that Title VII does prohibit discrimination based on sexual orientation. 

In April 2017, the Seventh Circuit, which hears cases from Wisconsin, Illinois and Indiana, was the first federal appellate court to rule that Title VII covers such  discrimination.  But the Eleventh Circuit Court of Appeals, which covers Alabama, Florida and Georgia, came to the opposite conclusion last year, creating a split among the circuits.  The U.S. Supreme Court declined to take up the issue in an appeal from the Eleventh Circuit in December 2017. 

Additionally, in a landmark ruling last week, the Sixth Circuit Court of Appeals found that discrimination against a worker based on gender identity is sex discrimination prohibited by Title VII.  The decision impacts employers and workers in Kentucky, Michigan, Ohio and Tennessee – the states within the Sixth Circuit.  The employer in that case has indicated it may take the case to the Supreme Court. 

If the Supreme Court addresses either issue, it will not likely do so until at least the spring of 2019.

Nevertheless, the Equal Employment Opportunity Commission has taken the position that Title VII covers sexual orientation and gender identity harassment, while the Department of Justice has taken the opposition position.  Moreover, the increased publicity surrounding sexual harassment has led to a rapid rise in claims in the workplace.  As word of the most recent rulings out of the Second and Sixth Circuits spreads, there may be an increase in sexual orientation and transgender-based employee discrimination claims.  Under the circumstances, we encourage employers to pay attention to any allegations or claims of workplace discrimination or harassment based on sexual orientation or gender identity and to address them with particular care in light of these recent decisions.

Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.