A U.S. appeals court in Atlanta made a lot of waves in the employment law community this week by ruling that sexual orientation is not a protected characteristic under Title VII of the Civil Rights Act of 1964. But there are some interesting wrinkles to the case that employers need to know about.
In essence, what the court said was that employers aren’t prohibited from discriminating against employees because of sexual orientation.
But before employers take that as gospel, here are four things they need to know:
1. Other circuit courts don’t feel the same
Circuit courts across the U.S. have landed on either side of this issue. Some feel sexual orientation discrimination is essentially the same as sex discrimination because it’s based on “sex stereotypes” — i.e., preconceived ideas of how a man or a woman should act or think.
Other courts feel sexual orientation isn’t protected by Title VII because it’s not specifically spelled out as a protected characteristic in the law, plain and simple.
2. Think behavior v. status
The U.S. appeals court in Atlanta appears to fall somewhere in the middle.
Circuit Judge William Pryor has argued that when employers take action against employees based on behavior rather than status, those actions are prohibited, according to a report by the Associated Press.
In other words, Pryor says an employee can establish a sex discrimination claim if he/she can prove an adverse employment action was taken because his/her behavior deviated from a gender stereotype.
But if an employee experienced an adverse action simply because he or she is homosexual, for example, that would not be something upon which a person could build a sex discrimination lawsuit.
In the case before the Atlanta court, Jameka Evans sued her former employer, Georgia Regional Hospital in Savannah, under Title VII, claiming she was discriminated against because she was a lesbian. But Judge Jose E. Martinez wrote Title VII doesn’t prohibit discharge for homosexuality.
But in her claims, Evans said she became a target because her behavior didn’t conform to gender stereotypes — most notably, she dressed like a man and had a male haircut. The court said those accusations could amount to a protected claim on the basis of behavior, and it instructed a lower court to allow Evans to amend her initial complaint, the AP reported.
3. Several states have more stringent laws
Employers will also want to keep in mind something the Seventh Circuit Court of Appeals said in a ruling late in 2016.
The ruling came in a case brought by Kimberly Hively against Ivy Tech Community College in South Bend, IN.
When Hively’s part-time employment contract wasn’t renewed by the college, she filed a claim with the EEOC alleging sexual orientation discrimination. She then filed a lawsuit in federal court.
The Seventh Circuit said sexual orientation discrimination or harassment claims couldn’t be brought under Title VII.
But the court warned that it’s likely only a matter of time before Congress or the Supreme Court act to expand Title VII to protect sexual orientation.
Plus, it reminded employers that nearly half the states in the U.S. have laws that ban sexual orientation discrimination.
4. EEOC has taken a stand
It’s also important to note that the EEOC, while under the Obama administration, made it very clear it will pursue litigation when employers discriminate against employees on the basis of sexual orientation.
The agency sides with the circuit courts that say discrimination on the basis of sexual orientation is another form of sex discrimination.