Will Sexual Orientation Bias Be Banned?
Does Title VII of the Civil Rights Act protect people who identify as gay, bisexual, or transgendered? That is the debate going on in Chicago right now. Several Seventh Circuit judges spoke out about the possibility that they could be ready to make their court the first in the nation to ban sexual orientation bias.
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Is Sexual Orientation Currently Covered Under Title VII?
That largely depends on who you ask.
The Equal Employment Opportunity Commission (EEOC) states that it “…interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” This can include things like:
- Not hiring someone because they identify as a transgender person
- Denying an employee or job applicant equal access to a gender-specific restroom
- Denying an employee a promotion or failing to hire someone based on the fact that they are openly gay (or the business assumes they are gay)
While the EEOC may interpret and enforce Title VII in this manner, there isn’t a federal law that specifically prohibits sexual orientation bias so that leaves room for interpretation by the courts. Are employees covered under Title VII against sexual orientation bias? Probably. But probably is not a very firm ground to stand on when it comes to facing your employer in court.
Congress has toyed with the idea of explicitly adding sexual orientation to Title VII but has yet to make it final. Title VII does, however, protect people from discrimination based on their sex or gender. In the late ‘80s, the court did add sexual stereotyping as a form of sexual harassment. In 2015, the EEOC declared that sexual orientation discrimination issex discrimination in its eyes.
Not having sexual orientation explicitly described in Title VII places LGBT employees in an uncomfortable position. The issue in the case of Hively versus Ivy Tech Community College in the Seventh Circuit is whether Kimberly Hively should have been protected against discrimination when she was denied full-time employment on six different occasions and later fired because she was/is a lesbian.
What This Court Ruling Could Mean for the LGBT Community
While the EEOC interprets Title VII to include sexual orientation as a protected class, this court ruling could be the first step to overhaul nondiscrimination law across the country.
This court case is the first to test the EEOC’s new support on a federal level. It would have to reverse the lower court ruling to do so. This would be a big win for the Lambda Legal Defense and Education Fund that has stated in many court cases Title VII, when interpreted properly, protects the rights of LGBT employees.
If you believe you were terminated based on your sexual orientation or gender identification, or if you’re facing sexual harassment in the form of sexual stereotyping or jokes about being LGBT, you may have recourse with your employer. Contact Wenzel Fenton Cabassa, P.A. today. Our employment attorneys are standing by and the initial consultation is free.