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Does Title VII cover sexual orientation?

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in Discrimination and Harassment,Human Resources

Until recently, the conventional wisdom—and the EEOC’s official position—was that Title VII’s sex discrimination provisions did not outlaw discrimination based on sexual orientation.

Likewise, the Supreme Court has never ruled that sexual orientation itself was a protected characteristic under Title VII, even as it has ruled that discrimination against someone for possessing stereotypical characteristics or behaviors belonging to the opposite sex could be discrimination on the basis of sex.

But after the Supreme Court found same-sex marriage to be constitutionally protected (Obergefell v. Hodges, U.S. Sup. Ct., 2015), the EEOC and the Obama administration moved forward with a revised interpretation of what Title VII’s sex discrimination provision means.

While the Trump administration may withdraw executive orders issued by the prior administration, the EEOC is moving ahead with its interpretation that sexual orientation discrimination is illegal under Title VII.

That position may soon be tested in the Supreme Court as cases work their way through the legal system. Two cases in particular could lead the charge.

The first is a recent case out of the 11th Circuit Court of Appeals, which covers employers in Alabama, Florida and Georgia.

In that case, Jameka sued her former employer, the Georgia Regional Hospital, alleging that it discriminated against her on the basis of her sexual orientation. The EEOC filed an appellate brief supporting Jameka and arguing that sexual orientation is sex discrimination under Title VII.

Earlier this month, the 11th Circuit rejected that argument after concluding that there is no clear Supreme Court guidance. (Evans v. Georgia Regional Hospital, 11th Cir., 2017)

Still pending is a similar case in the 7th Circuit Court of Appeals, which covers employers in Illinois, Indiana and Wisconsin. The court first said that sexual orientation wasn’t covered, but then decided to have the full court reconsider in light of the EEOC’s position. That full court decision is expected any day, possibly setting up an appeal to the U.S. Supreme Court. (Hivey v. Ivy Tech Community College, 7th Cir., 2017)

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