US Supreme Court to Decide Whether Title VII Protects LGBT Employees

By Kathleen Jennings (kjj@wimlaw.com)

Today, the US Supreme Court agreed to consider three appeals court cases involving the issue of whether Title VII’s prohibition of discrimination on the basis of sex covers sexual orientation or gender identity. Currently, there is a split among the Circuits on this issue; the Seventh and Second Circuits have held that sexual orientation is protected by Title VII, and the Eleventh Circuit has held that it is not. In addition, the Sixth Circuit has held that Title VII protects a worker from discrimination on the basis of gender identity. Because of this split in the Circuits, it was only a matter of time until the US Supreme Court decided to take up this issue.

Title VII of the 1964 Civil Rights Act prohibits job discrimination because of “sex.” The narrow interpretation of Title VII does not expand the word “sex” to include sexual identity or transgender status. In 1989, the US Supreme Court held that discrimination on the basis of sex encompasses “sex stereotyping,” and prohibits discrimination against an employee on the basis of non-conformance to sex-based stereotypes. This interpretation has been utilized in some cases where LGBT have alleged that they were discriminated against because they did not conform to the stereotypes of their gender.

Others are urging the courts to adopt a more modern understanding of “sex” that encompasses job bias against a worker who is gay, lesbian, bisexual, or transgender.

Keep in mind that while we wait for the Supreme Court’s decision on this issue of federal law, which should be issued by this summer, several states and localities have enacted their own laws that protect LGBT workers from discrimination. Companies need to keep up with all of the laws in the states where they do business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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