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Employers will have to wait for more guidance on whether Title VII of the Civil Rights Act of 1964 protection applies to sexual orientation. On December 11, 2017, the Supreme Court denied a petition for writ of certiorari in a case challenging whether Title VII protects employees from sexual orientation discrimination.  The writ was filed by the plaintiff in Evans v. Georgia Regional Hospital, where the U.S. Court of Appeals for the Eleventh Circuit held sexual orientation discrimination was not prohibited by Title VII. The denial comes as somewhat of a shock given the current disconnect between the Circuits on this very issue.

Title VII, in part, provides it is unlawful for an employer to fail to hire, discharge or otherwise discriminate against an individual on the basis of sex. The law does not specifically reference sexual orientation, yet some courts have held discrimination on the basis of sexual orientation is prohibited as a form of “sex” discrimination.  Other courts have refused to recognize such a claim, leaving it up to Congress to change the law. 

Opposing the Eleventh Circuit is the Seventh Circuit. In April 2017, the Seventh Circuit Court of Appeals held Title VII does in fact prohibit employment discrimination on the basis of sexual orientation.  In that case, Hively v. Ivy Tech Comty. Coll. Of Ind.Hively v. Ivy Tech Comty. Coll. Of Ind.,, the court held Plaintiff could proceed on her claim that her employer failed to hire her for multiple positions because she is homosexual.

Somewhere in the middle lies the Second Circuit which dismissed a Title VII claim focused on sexual orientation discrimination, but held the case could proceed as a plausible gender stereotyping claim under the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  In Price Waterhouse, the Supreme Court held adverse employment action rooted in “sex stereotyping” or “gender stereotyping” was actionable sex discrimination.

The Eleventh Circuit covers the states of Alabama, Florida and Georgia. The Seventh Circuit covers the states of Illinois, Indiana, and Wisconsin, and the Second covers the states of Connecticut, New York and Vermont.  That means at least 9 out of 50 states have weighed in on the issue, but employers will have to wait for a definitive ruling from the Supreme Court.  Given the movement in the courts on this issue, employers should train their managers and supervisors about ensuring employment decisions are not based on an employee’s sexual orientation.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.