Can Title VII Protect Against Sexual Orientation Discrimination?

Whether sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 extends to and protects against discrimination based on sexual orientation will likely be considered by the Supreme Court in the near future. Pursuant to Title VII, employers are prohibited from taking sex/gender into consideration in work-related decisions such as the hiring, firing, or promoting of workers. Two cases currently pending have challenged whether this protection includes discrimination against LGBTQ+ workers. In one, the 11^th US Circuit Court of Appeals determined that Title VII did not include “sexual orientation discrimination,” and attorneys have asked Supreme Court to take up her appeal. In the other, the 2d US Circuit Court of Appeals is considering a claim brought by the estate of Donald Zarda. Zarda, a skydiving instructor, died before trial, but his estate has continued his suit. Observers believe that regardless of how the courts decide, the result will also be appealed to the Supreme Court.

Complicating the issue, this past week Attorney General Jeff Sessions wrote in a memo to all U.S. attorneys and heads of federal agencies that Title VII does not protect against discrimination against gays, lesbian and transgender workers. This is in direct contrast to the position set forth by Eric Holder, the attorney general under President Obama. While these memos do not hold the force of law, they establish a general policy. However, the Equal Employment Opportunity Commission (EEOC), supports the position that Title VII does protect against discrimination based on sexual orientation, and enforces this position within its jurisdiction.

Based on the uncertainty and conflicts within the courts, it is likely the Supreme Court will review this important legal issue. As Georgia employment discrimination lawyers, we will be watching these cases closely and will fight to ensure all workers are protected from workplace discrimination. For more information, please contact the experienced Georgia sex discrimination lawyers at Buckley Bala Wilson Mew LLP for an immediate case evaluation.