Title VII of the Civil Rights Act of 1964 provides safeguards for employees across the United States from discrimination and harassment based on numerous protected factors. While the law does not specifically state “sexual orientation” as a protected factor, the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, has issued guidance in recent years that the agency interprets the law to prohibit sexual orientation discrimination under the umbrella of unlawful “sex” discrimination. There is, however, no federal law yet that expressly prohibits this type of employment discrimination.
In May, a federal judge for the Third Circuit dismissed a sexual orientation discrimination claim by an employee on the grounds that it had no cause of action for federal jurisdiction. The judge stated he was following Third Circuit precedent from 2001 in his ruling. This precedent was set long before the EEOC guidance, which the court declined to take into account.
The Court’s Reasoning
Instead of considering the guidance from the EEOC that there are, in fact, federal protections against sexual orientation discrimination under Title VII, the court followed the decision in the 2001 case, Bibby v. Phila. Coca Cola Bottling Co. This case held that because Congress failed to pass a law expressly making sexual orientation a protected factor, it should not be considered to be one.
Several of the 13 federal circuits have heard cases on this issue, and the Second and Seventh Circuits both ruled that Title VII does prohibit sexual orientation discrimination. However, the Third Circuit judge in this case stated, “We find that although plaintiff’s position may be correct in certain jurisdictions, the precedent in the Third Circuit favors the defendant’s position.”
The employee also brought a claim for discrimination based on gender stereotyping, which is a federal issue. In 1989, the Supreme Court of the United States (SCOTUS) ruled in Price Waterhouse v. Hopkinsthat sex discrimination protections under Title VII include gender stereotyping. However, the judge in the recent case also dismissed this claim. The court held that the plaintiff “is not alleging that he was discriminated against because he acted stereotypically gay; he claims that he experienced discrimination because he was actually gay. As a result, we construe the pleadings to allege sexual orientation discrimination as opposed to gender stereotype discrimination.” For this reason, the entire case was thrown out by the court.
The Future of Sexual Orientation Protections in the United States
Congress has tried to pass laws expanding protections to LGBT employees across the country for years without success. A bill proposed in 2015 to enact the federal Equality Act recently passed in the House of Representatives. This law would protect LGBT people in the U.S. from discrimination and harassment in employment, housing, and public accommodations, including retail stores and financial institutions. However, despite passing in the Democrat-controlled House, the bill has a slim chance of even getting a vote in the Republican-controlled Senate.
Because a federal law likely will not go into effect anytime soon, we can look at state laws that protect employees within an individual state. Just like laws regarding marijuana and minimum wage, the states vary widely on their enactment and enforcement of sexual orientation discrimination laws. The following states prohibit discrimination in both the private and public sector based on either sexual orientation or gender identity:
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- Rhode Island
Other states have partial protections, while some states still have no protections for LGBT employees.
If an employee works in a state with protections, they can bring a claim against their employer in state court, though they might not be able to prevail in federal court. This is the case for employees in the Third Circuit, which covers New Jersey, Pennsylvania, and Delaware, all of which have state-level protections.
With both the federal circuits and the states divided on the issue, the attention now turns to the national stage and SCOTUS, which is expected to make its own ruling on the matter this year.
Upcoming Supreme Court Cases
In April 2019, SCOTUS agreed to hear two different cases involving sexual orientation discrimination out of two different circuits with opposite rulings. With its decision in the consolidated matter, SCOTUS will set the precedent that all federal circuits will have to follow, so this will truly be a landmark decision that affects millions of employees across the U.S.
In this case out of the Eleventh Circuit, a man was terminated from his position as a child welfare services coordinator in Clayton County, Georgia. Bostock received praise for his work for years until he joined a gay recreational softball team. Shortly after, he experienced harassment at work, was subject to an internal audit, and ultimately fired.
The United States Court of Appeals for the Eleventh Circuit followed that circuit’s precedent and upheld the lower court’s ruling that Title VII did not include sexual orientation protections and, therefore, Bostock failed to state a valid claim under federal law. He appealed the case to the Supreme Court.
Donald Zarda was fired from his job in New York as a skydiving instructor when a customer complained after Zarda told her he was gay. Zarda brought a claim for sexual orientation discrimination to federal court, and both the United States District Court for the Eastern District of New York and the United States Court of Appeals for the Second Circuit ruled against him. However, the Second Circuit appellate court agreed to hear the case en bancwith all judges present to rule on the matter.
In February 2018, the full panel of the Second Circuit ruled that sex discrimination under Title VII includes sexual orientation discrimination. Zarda’s former employer, Altitude Express, appealed the case to the Supreme Court.
With cases from two split circuits, SCOTUS is looking to settle whether Title VII – as it is currently written- includes protections from LGBT employees. The Court is also hearing a separate case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, in which it will decide whether Title VII also protects transgender employees from discrimination and harassment.
If SCOTUS finds in favor of employees and applies protections, courts will not be able to pick and choose whether they want to abide by the EEOC’s guidance or not. Instead, they will be bound to the SCOTUS precedent. In addition, LGBT employees living in states with no protections in the law will have federal protection, so all employers will be prohibited from discrimination, harassment, and retaliation based on sexual orientation. Along with most of the country, we will certainly be watching closely for the outcome of this matter.
Consult with a New Jersey Employment Attorney about Your Rights
At Traub Law, we know that employment discrimination and harassment cases are often anything but clear-cut. Employment lawyer Rina Traub fights for the rights of employees in New Jersey in many different circumstances, and if your employer acts unlawfully, you should not hesitate to seek legal assistance. Call 609-951-2204 or contact us online for a case evaluation today.