LGBT Law Continues to Evolve LGBT Law Continues to Evolve

LGBT Law Continues to Evolve

This should not be so difficult. The question is simple—is sexual orientation a protected status under employment discrimination law? Unfortunately, recent judicial and legislative activities have only muddied the waters and left many employers unsure of their obligations.

Like many areas of employment law, the rights of LGBT (lesbian, gay, bisexual, transsexual) employees and parallel employer obligations continue to evolve. However, the lack of clarity in this area may be getting worse. The first source of potential guidance is federal law, primarily Title VII of the Civil Rights Act of 1964. Federal law generally provides a baseline of antidiscrimination law, but states and municipalities can enact their own laws further extending federal protections. Recent decisions of two different federal appellate courts illustrate the disagreement on this issue. This means that whether federal law prohibits discrimination based upon sexual orientation is uncertain and can depend upon the state in which an employee works.

On March 10, 2017, the U.S. Eleventh Circuit Court of Appeals (covering Georgia, Alabama and Florida) issued a decision that sexual orientation is not protected by Title VII.  Then, on April 4, 2017, the U.S. Seventh Circuit Court of Appeals (covering Indiana, Illinois and Wisconsin) issued an opinion coming to the opposite conclusion—discrimination based upon sexual orientation is prohibited under Title VII. To add to the disagreement, a new proposed federal law, The Equality Act of 2017, was introduced on May 2, 2017 in both the U.S. House of Representatives and Senate seeking to formally add sexual orientation to the list of protected categories under Title VII. In other words, even federal law on this issue is in flux.


The second source of potential guidance on whether sexual orientation is a protected class comes from state and local legislation. Many states and municipalities have enacted legislation specifically prohibiting employment discrimination based upon sexual orientation.  This means that regardless of federal law, employers doing business in such jurisdictions need to be aware of and adhere to those requirements. Although that may seem relatively straightforward for employers operating in limited locations, those with multiple operations in various jurisdictions need to comply with each local requirement.

Putting political opinions aside, employers need some sense of how to deal with this issue while running a business. With such a glaring contrast between the appellate court decisions referenced above, the federal issue may eventually be resolved by the U.S. Supreme Court. Not only is there no guarantee of how the Supreme Court might decide the issue, but federal and state legislatures might answer the question themselves by enacting legislation such as The Equality Act. Anecdotally, most employers seem past discriminating against employees based upon sexual orientation. However, that same statement could be made for traditionally protected categories of Title VII such as race, religion and sex, yet employers regularly face charges and lawsuits alleging discrimination on those bases. Whether such claims are legitimate does not remove the exposure and expense of defending the cases.

In order to minimize that exposure, the best practice for many employers (especially those with employees in multiple jurisdictions) may be to consider a uniform policy broad enough to satisfy the requirements imposed by all jurisdictions in which they have employees.  Doing so not only helps avoid risk by ensuring consistency but is often easier than forcing your HR people to make daily employment decisions on a state-by-state or municipality-by-municipality basis.

For more information, contact Bill Barath or another member of our Labor, Employment and Immigration Practice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
View Full Site View Mobile Optimized