Sexual Orientation Under Title VII

I’ve been closely following the evolving legal landscape regarding sexual orientation discrimination under Title VII, as I am regularly faced with questions from employees and employers alike regarding the parameters of protection.

The EEOC leads the way, and offers great guidance – I usually refer clients to the EEOC website, which is user friendly and contains a significant amount of information and resources.

While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the EEOC interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.  Over the past several years the Commission has set forth its position in several published decisions involving federal employment. You can find summaries of the decisions on the EEOC website, at https://www.eeoc.gov/federal/reports/lgbt_cases.cfm.

These decisions explain the legal basis for concluding that LGBTQ-related discrimination constitutes sex discrimination under Title VII, and give examples of what would be considered unlawful. In so ruling, the Commission has not recognized any new protected characteristics under Title VII.  Rather, it has applied existing Title VII precedents to sex discrimination claims raised by LGBTQ individuals.  The Commission has reiterated these positions through recent amicus curiae briefs and litigation against private companies.  Importantly, these protections apply regardless of any contrary state or local laws.

The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBTQ discrimination charges under Title VII since data collection began in 2013.  A growing number of court decisions have endorsed the Commission’s interpretation of Title VII.

Some examples of LGBTQ-related claims that EEOC views as unlawful sex discrimination include:

• Failing to hire an applicant because she is a transgender woman.
• Firing an employee because he is planning or has made a gender transition.
• Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
• Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
• Denying an employee a promotion because he is gay or straight.
• Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
• Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
• Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

The Federal Circuit Courts are split on this issue, and in late 2018, the Sixth Circuit surprisingly ruled with sister Circuits finding that Title VII prohibits sexual orientation discrimination. See EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560, 575 (6th Cir. 2018). Aimee Stephens had worked for nearly six years as a funeral director at R.G. and G.R. Harris Funeral Homes when she informed the funeral home’s owner that she is a transgender woman. Her employer fired her, and the EEOC sued on her behalf. The Sixth Circuit Court of Appeals ruled that Aimee’s employer engaged in unlawful sex discrimination when it fired her because she’s transgender. R.G. & G.R. Harris Funeral Homes is asking the Supreme Court to review the case. The ACLU represents Aimee Stephens.

Most Americans understand that it’s both wrong and unlawful to fire someone for being LGBTQ. No one should have to live in fear that they can be fired just because of who they are. The United States Supreme Court has not yet ruled on the issue, while several bills aimed at expanding Title VII to specifically address this issue have been proposed already.

Kentucky does not have a statewide law that prohibits discrimination based on sexual orientation or gender identity in employment.  Currently, the Kentucky Civil Rights Act (“KCRA”) prohibits employment discrimination based on race, religion, national origin, sex, age and disability.  The employment non-discrimination provisions of the KCRA apply generally to both public and private sector employers with more than 8 employees.  The Kentucky Human Rights Commission enforces the KCRA.

Public employment discrimination against state workers based on sexual orientation or gender identity is illegal under an executive order by Governor Steve Beshear (Democrat) in June 2008. Such discrimination was originally banned by an executive order by Governor Paul Patton (Democrat) under an executive order issued by him in 2003. When Republican Governor Ernie Fletcher took office, however, he removed these protections in 2006. Thus, Beshear’s order reinstates such protections.  In February 2013, Berea Mayor Steve Connelly banned discrimination on the basis of actual or perceived sexual orientation via executive order. The order applies only to the town’s 130 public employees.

In the private sector, several Kentucky cities have local non-discrimination ordinances—or Fairness Ordinances—covering sexual orientation and gender identity: Covington (2003), Danville (2014), Frankfort (2013), Lexington-Fayette County (1999), Louisville Metro (1999), Morehead (2013), Vicco (2013) and Midway (2015). The City of Henderson adopted a non-discrimination ordinance in 1999 but a subsequent group of city commissioners removed the protections in 2001. On January 9, 2018, the Paducah City Commission voted to add protection laws for LGBT people in changes to the City’s Human Rights Commission ordinance.

Some of Kentucky’s largest employers also ban sexual orientation discrimination through company policies and include such employers as Lexmark, the University of Kentucky, the University of Louisville, Toyota, Ford Motor Company, General Electric, PNC Financial Services, Yum! Brands and United Parcel Service.

In March 2017, Governor Bevin signed legislation that allows student organizations at the Commonwealth’s public schools and colleges to bar gays, lesbians and transgender people from joining, opening a new front in a national battle over so-called religious freedom laws. The law, Senate Bill 17, will allow students to engage in religious activities and to express religious views in public schools and in their assignments. It would also allow teachers to include lessons about the Bible in discussions of religion and history. The legislation stems from a 2015 decision to remove references to Jesus Christ from a student production of “A Charlie Brown Christmas.” The bill passed both the state Senate and state House with broad bipartisan support.

• Jessica Winters, Managing Member

This post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from The Winters Law Group LLC, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.