As the legal milieu surrounding sexual orientation changes, businesses may want to follow suit.
In a landmark decision on April 4, 2017, the Seventh Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII of the Civil Rights Act of 1964. Sitting en banc, the Seventh Circuit held that discrimination based on an individual’s sexual orientation falls within the definition of “sex” under Title VII.
With a flurry of Title VII sexual orientation cases popping up in federal courts across the nation in recent weeks, we can expect that this series of dominoes will continue to fall—inevitably bringing about a wave of change to the modern workplace in the near future.
What Title VII Covers
In simple terms, Title VII prohibits an employer from discriminating on the basis of race, color, national origin, religion or sex. Initially, federal courts took the position that “sex” should be narrowly interpreted to refer to a person’s biological sex. However, Title VII’s definition of “sex” has since been expanded to include discrimination based on gender non-conformity, in which an individual doesn’t conform to society’s gender norms.
In 2015, the Equal Employment Opportunity Commission (EEOC) issued an administrative decision ruling that “sexual orientation is inherently a ‘sex-based consideration’” and any discrimination claims based on sexual orientation should hold the same weight as discrimination on the basis of sex. The EEOC’s position was largely predicated on the fact that gender stereotyping is the reason for most discrimination against LGBTQ individuals.
Most recently, the Seventh Circuit became the first federal appellate court to adopt the EEOC’s position that discrimination based on one’s sexual orientation is equivalent to discrimination based on gender non-conformity—therefore making it actionable under Title VII.
What Does This Mean for Employers?
Employers in Ohio are not directly impacted by the Seventh Circuit’s decision, or at least not yet. Ohio resides within the Sixth Circuit, which has not held that discrimination based on sexual orientation is a violation of Title VII. However, it appears inevitable that this landmark ruling will be followed by decisions in other circuit courts similarly extending Title VII protections to cover sexual orientation. In fact, there is presently one such action pending in the Eastern District of Michigan that will likely soon reach the Sixth Circuit Court of Appeals.
But even if similar appellate decisions don’t immediately come to fruition, there are other ways in which an Ohio employer might still face liability. First, many Ohio localities and municipalities have adopted their own laws prohibiting discrimination based on sexual orientation. For example, Chapter 2331 of the Columbus City Code prohibits discrimination against individuals on the basis of their sexual orientation or gender identity/expression.
Second, the US Supreme Court and the Sixth Circuit have held that discrimination based on non-conformity with gender or sex stereotypes is actionable under Title VII. This includes situations where employers have allegedly discriminated against workers for failing to live up to stereotypical gender norms. Several courts have noted the exceptional difficulty in separating these “sex-stereotyping” claims from pure sexual orientation claims. Practically, this means that employers anywhere could face a Title VII claim akin to sexual orientation discrimination that would be accepted as valid by a federal court.
What Steps Should Employers Take Now?
Although it’s possible that the US Supreme Court or Congress could step in and reverse the expansion of LGBTQ protections in the workplace, this scenario seems highly unlikely given our present social climate.
In preparation, employers will need to begin taking proactive steps now to make sure that sexual orientation is treated the same as any other protected class in the workplace. This includes reviewing their written policies, handbooks, training sessions, workplace investigations, hiring methods, discipline and discharge procedures, and any other human resources-related activities.
In addition, employers should avoid any discrimination—blatant or subtle—on the basis of sexual orientation or gender identity. Although discrimination is usually thought of as a blatant act, it can often be found in more subtle places, such as job advertisements (e.g., “help wanted – young male”) or during the interview process (e.g., “What are your hobbies outside of work?”).
In the case that sexual orientation discrimination is alleged, employers should ensure all internal complaints are promptly handled and thoroughly investigated, and that the complainant experiences no retaliation for reporting such discrimination. Likewise, any employment decisions—including those involving discipline and discharge—should be for non-discriminatory, non-retaliatory reasons. Otherwise, employers could face legal action under Title VII.
Curtis Moore is an associate attorney at the Columbus office of Fisher Phillips, a national management-side labor and employment law firm. He represents employers in various types of labor and employment litigation, and provides counsel on best practices for navigating day-to-day workplace issues.