The Changing Landscape of Sexual Orientation Discrimination Law

From the time Congress passed the Civil Rights Act of 1964 until earlier this year, federal courts have consistently held that the Act’s protections against employment discrimination did not apply to discrimination on the basis of sexual orientation. However, in March, the Seventh Circuit Court of Appeals (which covers Wisconsin, Illinois, and Indiana) became the first court to rule the other way, holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation. What has occurred in federal courts in the wake of that decision, however, has only muddied the waters.

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. Prior to the Seventh Circuit’s notable decision, courts had only permitted gay employees to make claims of sex discrimination if the employee could show the discrimination occurred because the employee did not conform to gender stereotypes, not simply because of the employee’s sexual orientation. The Seventh Circuit found that the gender stereotype argument is unnecessary, stating “it is . . . impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

The question is far from settled. In April, in a case involving a gay skydiving instructor who claims he was fired because of his sexual orientation, a three-judge panel of the Second Circuit ruled that it could not follow the Seventh Circuit’s decision. It held that a three-judge panel could not overturn precedential decisions regarding Title VII’s application to sexual orientation discrimination. Such a ruling would require a review by the entire panel of judges. The Second Circuit has granted such a review (an en bancreview), indicating that perhaps the full panel of judges may be willing to follow the lead of the Seventh Circuit.

The picture becomes fuzzier still because of conflicting input from two government agencies. In preparation for its en banc review, the Second Circuit invited the EEOC to offer an opinion on the matter. The EEOC restated a stance it has held since 2012, saying sexual orientation discrimination is inextricably linked to gender and gender stereotypes and should fall under the protection of Title VII. However, on July 26, 2017, the Department of Justice filed a brief taking the opposite position. The DOJ argued Congress did not intend Title VII to apply to sexual orientation, and that expansion of the protection should be left to Congress, not implemented by the courts. The DOJ also says that the court owes no deference to the EEOC.

Because the federal circuits are now split on the issue, the question may eventually be decided by the United States Supreme Court. The Court has already been asked to review a case in which a former security guard at a Georgia hospital claims she was forced to quit because she was gay. The Court has not yet said whether it will hear the case. Ultimately, as the DOJ suggests, Congress could pass legislation to decide the issue one way or the other.

The takeaway from this flurry of activity is that this is an area of law that is very much in flux. For decades, the position of federal courts in regards to sexual orientation discrimination under Title VII was clear. Now, the landscape has shifted, and the ground is still settling. Employers should be aware that changes are happening quickly in this area and proceed cautiously when a situation potentially involving a sexual orientation discrimination claim arises.

This post was written by Mark G Jeffries of  Steptoe & Johnson PLLC.
Much more legal analysis at the National Law Review.

The Christmas Conundrum, continued

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Last week we discussed the basic framework for providing employees with days off during recognized religious holidays.  A related issue commonly presented during the holiday season is whether employees must be paid for their time off.

While an employer may have to give an employee time off in order to observe a religious holiday in accordance with Title VII of the Civil Rights Act, the “reasonable accommodation” does not have to be accompanied by pay.  Although it may not be a popular decision, denying paid time off is perfectly acceptable when it comes to non-exempt (hourly) employees. Generally speaking, an employer is only required to pay hourly employees for time actually worked. For exempt employees (generally, salaried) who are given time off, the full weekly salary must be paid if they worked hours during the week in which the holiday falls. As always, a contract or collective bargaining agreement can create an affirmative obligation to provide paid time off.

Notwithstanding the foregoing, private employers or employees engaging in work with the federal government should be conscious of two possible exceptions to their paid time off rules.  The federal government provides its employees with paid time off on several recognized holidays and, in addition, often provides overtime pay to those employees who must work during the holidays. Although this is not legally mandated for private employers, persons who work under a government service contract subject to the McNamara O’Hara Service Contract Act and persons who work under a government labor contract subject to the Davis-Bacon and Related Acts must receive holiday and vacation benefits. The exact terms of these benefits depend on worker classification and contract.

Always remember, offering paid time off around the holidays is a gesture of good will. Regardless of an employer’s legal obligations, offering paid time off can go a long way in making the holidays a happier time for employees.

Article by:

W. Chapman Hopkins


McBrayer, McGinnis, Leslie and Kirkland, PLLC