Court clear on sexual orientation protection in the workplace

On Behalf of | Mar 5, 2018 | Employment Litigation |

The U.S. Department of Justice says no. The federal Equal Employment Opportunity Commission says yes. And now a second federal appeals court has lined up beside the latter.

The subject matter at hand can best be posed as a question, namely this: Does the seminal Title VII of the 1964 Civil Rights Act include sexual orientation as a category that is protected against discrimination in American workplaces?

The answer was clearly “no” when the federal law was enacted. Although drafters of the legislation did include “sex” as an enumerated category, it was not commonly considered — and certainly not in the courts — that anti-discrimination safeguards extended to matters of sexual identification and preference.

A ruling just last week, though, definitely altered the debate and even swung the judicial pendulum decidedly in the direction of protection. One of the nation’s regional federal circuit courts became the second such tribunal to assert that sexual orientation is indeed a protected category, simply being a subset of the already included sex-based consideration. One circuit court disagrees with that, making for a national split that many commentators believe will ultimately be decided by the U.S. Supreme Court.

The DOJ was less than enthralled with the decision. In fact, the agency had intervened in the case at issue to note its view that, because Title VII does not explicitly cite sexual orientation, the courts are not at liberty to include it for workplace protection.

The EEOC has stridently opposed that position, arguing that protection must logically be extended owing to sexual orientation flatly being a sex-based concern.

Members of that body now have additional ammunition for their view, given the circuit court’s 10-3 ruling that endorses it.