The Civil Rights Act has been on the books since 1964, when it was signed by President Lyndon B. Johnson to protect against discrimination based on protected classes. Title VII of the Civil Rights Act specifically deals with workplace discrimination — protecting employees on the basis of race, color, national origin, sex and religion. Title VII also created the Equal Employment Opportunity Commission (EEOC) to enforce civil rights laws against workplace discrimination.
Title VII does not, however, explicitly cover protection against discrimination based on sexual orientation.
“Up until about 2015, there was a pretty strict idea among all courts in federal jurisdictions – and even the EEOC – that sexual orientation was not a protected class,” explains Andrew Baer, a labor and employment lawyer with Deutsch Kerrigan.
But as society has changed its views on sex and gender, so have the courts changed their interpretation of the law, including what constitutes discrimination based on sex.
“It seemed to coincide with gay marriage becoming a more prominent social topic, and eventually being legalized in the court system,” says Baer.
In 2015, the EEOC held that “sexual orientation is inherently a ‘sex-based consideration;’ and accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Essentially, the EEOC decided that heterosexuality and homosexuality are determined by a person’s biological sex, and therefore discrimination based on sexual orientation is discrimination based on a person’s sex.
CHANGING TIDE
While federal law doesn’t currently grant protection against sexual orientation discrimination, recent circuit court decisions are signaling a change.
In April 2017, the 7th Circuit Court of Appeals in Chicago ruled that Title VII does protect all gay employees from sexual orientation discrimination. In the case of Hively v. Ivy Tech, Kimberly Hively, an openly gay professor at Ivy Tech Community College, sued her former employer for discrimination on the basis of sexual orientation. The court ruled 8-3 in Hively’s favor, including support from five Republican court appointees.
More recently, the 2nd Circuit Court of Appeals in Manhattan became the second court to rule that federal sex discrimination laws apply to sexual orientation in a ruling this past February on Zarda v. Altitude Express, Inc., where Donald Zarda, a skydiving instructor on Long Island, claimed that he was fired from his job after he told a customer he was gay and she complained.
So far these rulings haven’t had a practical effect, says Leslie Ehret, a labor and employment lawyer at Frilot, LLC, “because all of the states that are covered by the 2nd Circuit — including New York, Vermont, and Connecticut — already have their own state statutes prohibiting discrimination based on sexual orientation.”
But, says Baer, “It’s kind of a big deal when an appellate circuit court makes the statement and provides an opinion such as the one that just came down from the 2nd Circuit,” because court decisions provide precedent for future decisions, including Supreme Court rulings.
“Everyone thinks the Supreme Court is going to have to look at the issue,” adds Ehret.
Currently the one circuit court that has ruled that Title VII doesn’t extend to protections for sexual orientation is the 11th Circuit Court out of Georgia in the case Evans v. Georgia Regional Hospital, decided in March 2017.
“The whole question is whether or not the law as written right now actually encompasses sexual orientation,” says Baer. “The dissenting judges [in the 2nd Circuit case] even said the law should be changed to include sexual orientation discrimination as being prohibited.”
“There’s a bit of a circuit split, which is why I think a lot of employment lawyers like myself think at some point the Supreme Court is going to take up this issue so we get some consistency,” adds Sarah Voorhies Myers, partner in Chaffe McCall’s labor and employment division.
The 5th Circuit Court – which operates out of New Orleans and has jurisdiction over Louisiana, Mississippi and Texas — has yet to extend its interpretation of Title VII to protect against sexual orientation discrimination.
“There’s an opinion from the late ’70s where the 5th Circuit specifically held that Title VII did not encompass sexual orientation discrimination – and that’s still good law,” says Myers.
That case, Blum v. Gulf Oil Corp., in 1979, was cited as precedent in the 11th Circuit Court ruling (Evans v. Georgia Regional Hospital).
NEW ORLEANS BUSINESSES TAKE NOTE
While some states have their own laws that prohibit against discrimination on the basis of sexual orientation, Louisiana currently does not.
“Louisiana does have a state law prohibiting discrimination on the basis of sex, and that state law largely mirrors Title VII, the federal law,” says Myers.
However, cities can pass laws that are more restrictive than state laws, and New Orleans has done just that.
“There is a New Orleans ordinance prohibiting discrimination on the basis of sexual orientation and gender identity by any person, including employers,” says Myers.
The New Orleans Human Relations Commission enforces the city’s human relations rights laws. It has the authority to investigate and adjudicate discrimination complaints in employment, housing, public areas and private clubs. The commission mostly works to enforce the ordinance through sensitivity training, outreach and mediation.
WHAT DOES THIS MEAN FOR EMPLOYERS?
As the legal landscape changes, employers need to be aware of local, state and federal laws.
“This is a rapidly evolving area where more and more jurisdictions are starting to extend protections on the basis of sexual orientation and gender identity in a lot of cases,” says Myers.
Even though the issue hasn’t been taken up again outside New Orleans, businesses in surrounding areas should also take steps to protect themselves against future litigation because, says Andrew Baer, “you don’t want to be the test case that finds out you’re on the wrong side of the law.”
Remember – we’re not talking about a new law; this is a question of interpretation of an existing law. So, your legal liability is different.
Hypothetically speaking, if the 5th Circuit Court takes a case and decides Title VII includes sexual orientation as a protected class, the employer is bound by the new interpretation of the law.
“I would anticipate that in the next few years there’s going to be legal authority – whether statutory or jurisprudentially – that is going to impose an obligation on employers to prohibit sexual orientation discrimination,” says Baer.
Leslie Ehret agrees with Baer that it’s not a question of ‘if’, but ‘when.’ “I certainly think there’s a very good likelihood Title VII will continue to be expanded to include sexual orientation, sexual preference and gender identity issues.
So what should you do to protect your business from litigation?
Employers should, in every instance, focus on employees’ ability to perform their job, and not things like gender orientation or gender identity. However, there are other things employers can do to protect their company from a gender orientation discrimination suit.
1. Reconsider your policies.
Baer says its always a good idea to have your human resources department consult with either in-house or outside counsel to make sure your policies are up to date – not only on sexual orientation discrimination, but overall. Make sure your policy includes language to protect against discrimination based on sexual orientation.
“Really analyze your policies to make sure that you’re implementing the same types of policies and procedures that you currently employ for the definitive protected classes,” advises Andrew Baer.
2. Reevaluate your training.
“Most employers do training on non-discrimination in the workplace,” says Ehret. “You just want to make sure you include sensitivity toward sexual orientation, sexual preference and gender identity.”
3. Reconsider your bathroom policies.
“The best, and easiest scenario, is to neutralize the bathroom situation by using single-stall restrooms that remove the opportunity for gender discrimination,” Ehret says, “but you could also institute a policy permitting employees to use the bathroom of their choice.”
4. Think beyond your direct employees and train talent acquisition people to ensure that discrimination doesn’t occur during the hiring process.
“You want to make sure someone wasn’t explicitly or implicitly excluded because of the way they present gender-wise, their gender orientation or their sexual orientation,” says Ehret.
