Does Title VII Protect Against Sexual Orientation Discrimination? The Answer May Be Changing

Recent laws in North Carolina and Mississippi and the subsequent backlash are all over the news. The U.S. Supreme Court’s decision in Ogberfell v. Hodges making gay marriage legal across the country is not even a year old. The Fourth Circuit Court of Appeals very recently rule in favor of the right of transgender high school students to use bathrooms for the gender with which they associate. LGBTQ rights are at the forefront like never before. Employment discrimination is no exception. The Equal Employment Opportunity Commission (“EEOC”) has recently filed two separate suits in Pennsylvania and Maryland district courts challenging the long-held belief that Title VII does not protect against discrimination based on sexual orientation.

For many years courts held that because sexual orientation was not explicitly mentioned in the text of Title VII, the statute afforded no protection to employees based on their physical and emotional attraction. Cases in numerous federal courts of appeal held that Congress had to explicitly protect this class of employees to allow for claims of sexual-orientation discrimination.

However, much like the American public, courts have slowly begun to change their minds. More than ten years ago a federal court in Oregon found sexual orientation discrimination to be rooted in discrimination “because of sex.” The court found that a jury could find a harasser would have acted differently if the homosexual female plaintiff had been a male dating a woman. The court took this “but for gender” idea from the 1978 Supreme Court decision in Los Angeles Dep’t of Water & Power v. Manhart where the court said a practice is unlawful if the evidence shows the treatment of a person would have been different but for that person’s sex.

Other courts have taken the approach that discrimination based on sexual orientation is discrimination based on gender stereotypes. The U.S. Supreme Court held in Price Waterhouse v. Hopkins (also in 1978) that such discrimination is illegal under Title VII. Massachusetts, Ohio and Oregon federal courts have expanded on this ruling to address sexual-orientation discrimination.

Another approach to including protections based on sexual orientation is labeling it as discrimination “by association.” In applying Title VII’s prohibition of race discrimination, courts have consistently held the statute prevents discrimination based on an employee’s association with a person of another race. The reasoning is that discrimination based on an employee’s relationship with a person of another race requires an employer to consider race. When you couple this argument with language in the Price Waterhouse decision that states Title VII treats race, sex, religion, color, and national origin equally, it creates what many consider a strong argument for protecting employees based on their sexual orientation: if you discriminate against someone for their sexual orientation based on their relationship with someone of the same sex, you have to consider their sex, which is unlawful.

The EEOC validated all three of these arguments an administrative appeal decision last summer, which as now been cited by a New York federal court in upholding a jury finding of sexual-orientation discrimination, including an award of punitive damages. The EEOC already considers this the legal framework for including sexual-orientation discrimination under Title VII, and so last month it filed its first two sex discrimination lawsuits based on sexual orientation. While Congress has not changed Title VII’s language, its interpretation by the EEOC and more and more courts is effectively including sexual orientation. Wise employers will take note and review their policies, their training for managers and HR officials, and carefully consider all employment decisions where an employee’s sexual orientation might be at issue.