Title VII and sex discrimination…where will it end up?

“Sex discrimination” – what does that mean? Sounds simple, right? Discrimination against an individual because of their sex. But what does “because of their sex” mean? And what exactly is protected pursuant to Title VII? Those are the questions that courts are facing today, and ones that the U.S. Supreme Court may address.

Recently, the Eleventh Circuit Court of Appeals declined to reconsider its position in Jameka K. Evans v. Georgia Regional Hospital, Charles Moss et al., No. 15-15234, 2017 U.S. App. LEXIS 4301, wherein they held that Title VII does not protect against sexual orientation discrimination. When Title VII of the Civil Rights Act of 1964 was enacted did the drafters intend that discrimination based on one’s sexual orientation or gender identity was prohibited as “sex discrimination”? The EEOC says yes but the courts are split, making this issue ripe for review by the United States Supreme Court.

Despite the Supreme Court decisions, some of the courts are not clear as to what is considered “sex discrimination” under Title VII

The U.S Supreme Court set the stage for this discussion with its decisions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sunflower Offshore Services, Inc., 523 U.S. 75 (1998). In Price Waterhouse, the Supreme Court held that gender stereotyping is actionable as “sex discrimination” under Title VII. In Oncale, the Court determined that Title VII’s protection against sex discrimination applied to harassment between members of the same sex.

Fast forward to the present day, more than 20 years since those decisions, and the world is a different place where same sex marriages have been legalized by the Supreme Court and the LGBTQ community’s voice is being heard. So it seems that the trend is continuing to eliminate discrimination against the LGBTQ community. However, despite the Supreme Court decisions, some of the courts are not clear as to what is considered “sex discrimination” under Title VII.

For example, unlike the Eleventh Circuit, the Seventh Circuit became the first appellate court to hold that Title VII does in fact prohibit discrimination based on sexual orientation (Hively v. Ivy Tech Community College, No. 15-1720, U.S. App. LEXIS 5839). The Second Circuit recently agreed to reconsider its current position that Title VII does not prohibit sexual orientation discrimination. Given that they invited the EEOC to participate as amicus curiae, they may be gearing up to join the Seventh Circuit in finding that Title VII does protect against sexual orientation discrimination.

Employers should check their Employment Practices Liability insurance policy to make sure it includes allegations of sexual discrimination

While there is inconsistency within the courts, the EEOC has clearly stated its position that, “[w]hile Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission … interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.” In addition, “addressing emerging and developing issues” is one of the EEOC’s priorities in its Strategic Enforcement Plan for 2017-2021. This includes efforts to extend the protections of Title VII to cover LGBTQ employees.

Needless to say, it seems we will continue to hear from the EEOC on this issue as they continue in their efforts to protect the LGBTQ community from discrimination. Will the EEOC push to have Title VII amended to specify that it also protects against discrimination based on sexual orientation and gender identity? That seems likely if the Supreme Court does not take on the issue or rules in line with the Eleventh Circuit Court of Appeals. As we have seen in other areas of employment law, we will likely also see more activism at the state level.

What does this mean for employers? Ensure that all employees are treated fairly and equally, and that management is trained properly on how to treat employees in a non-discriminatory manner. Employers should also check their Employment Practices Liability insurance policy to make sure the definition of wrongful employment practice act is broad enough to include allegations of sexual discrimination.

This is certainly an evolving issue so stay tuned as this issue continues to develop.


 

Talene Megerian is the National Employment Practices Liability (EPL) Thought and Product Leader in the FINEX North America Practice.  In this role, she has responsibility for developing innovative, industry leading employment practices liability solutions, as well as the creation and delivery of relevant thought leadership and advice to national and global clients.

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