Employment Law Alert - April 5, 2017

BREAKING NEWS: U.S. COURT OF APPEALS HOLDS THAT DISCRIMINATION BASED ON SEXUAL ORIENTATION IS UNLAWFUL

Yesterday the federal appellate court sitting in Chicago ruled squarely that Title VII covers discrimination on the basis of sexual orientation in Hively v. Ivy Tech Community College of Indiana. Noting that the Supreme Court has not ruled on this issue yet, the Court of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination covered by Title VII.

Courts have routinely held, over the past few years, that discrimination against an overly effeminate male or a masculine woman violates Title VII, relying on the theory that this kind of sexual discrimination perpetuates sexual stereotyping, which has been unlawful since the U.S. Supreme Court's decision in the Price Watershouse case in the 1980s. However, while many courts have held it unlawful to fire someone for looking or acting gay or lesbian, the federal courts have been extremely reluctant to hold that it is unlawful to fire someone for actually being gay or lesbian.

No longer: the Seventh Circuits comprehensive decision rules that discrimination on the basis of sexual orientation is, standing alone and even without stereotyping on the basis of appearance or actions, a violation of Title VII. While the decision binds only those federal courts in the Upper Midwest, the Seventh Circuit is widely respected, and many courts may follow its persuasive lead.

PRACTICE POINTER

The U.S. Equal Opportunity Commission has taken the position that sexual orientation discrimination is a violation of Title VII but has had little luck convincing the courts to go along. Now, the trend appears to be moving the other way. Formerly, LGBT employees were forced to look to state or local law for protection against discrimination and harassment, and often such laws were lacking at the state or local level (For example, Virginias human rights act does not prohibit discrimination based on sexual orientation). Now, all human resource professionals may need to recommit to training in line with these principles, and ensure handbooks and policies are revised, if necessary, to ensure comprehensive coverage of all protected categories. These and other proactive steps employers should consider will be presented at a workshop as part of the April 20th showing of the 33rd Annual Employment Law Update to be held at the Richmond Convention Center.