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Does Title VII Ban Employer Discrimination Based on Sexuality?


Are LGBTQ+ Workers Protected Under the Law?

Though many states, including New York, explicitly state that employees may not be discriminated against or fired due to their sexuality, no US laws explicitly provide this right nationwide. Since 2015 the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII of the Civil Rights Act of 1964 to protect LGBTQ+ employees against discrimination. Title VII outlaws any discrimination based on sex—and, the EEOC reasons, because one’s sexual orientation cannot be determined without looking at both the sex of the employee and of their partner, sexual orientation is irrevocably tied to one’s sex and therefore falls under the protections written into the law.

A Decision with National Ramifications

However, an EEOC opinion does not have the same weight as a bill passed by Congress, and the Department of Justice (DOJ) filed a brief urging the Supreme Court to ignore the EEOC’s guidelines in making their judgement. Claiming the authors of the original law did not intend to protect LGBTQ+ employees, the DOJ supports a narrow interpretation of Title VII. Despite the Supreme Court’s previous rulings that have favored LGBTQ+ rights—like Obergefell v Hodges, which in 2015 affirmed that same-sex couples could get married—the change in the court’s makeup could result in a decision that sides with the DOJ, not the EEOC.

The Supreme Court recently heared arguments on behalf of two plaintiffs, Donald Zarda and Gerald Bostock, who were both fired as a result of their bosses learning they were gay. The court decided to combine the plaintiff’s lawsuits despite different rulings at the appellate level. Zarda v. Altitude Express, Inc. was decided in favor of the plaintiff by a split vote among judges of the Second Circuit Court of Appeals. Bostock v. Clayton County Board of Commissioners was not heard by the Eleventh Circuit Court of Appeals based on an old decision stating that Title VII did not cover sexual orientation. Though both cases received different answers to the underlying question, the Supreme Court will resolve the issue of whether sexual orientation is a protected class under existing law.

Nationwide, Courts Are Split on the Scope of Title VII

The Second Circuit and the Seventh Circuit are the only two federal appeals courts that have affirmed that an employee’s sexuality cannot be a deciding factor in their employment. Despite the EEOC’s guidance, other circuit courts have found against LGBTQ+ employees who allege discrimination. In many jurisdictions, such as the Eleventh Circuit’s, precedent has held that LGBTQ+ employees have no protection under the law. However, precedent can be overturned—and Zarda v. Altitude Express, Inc. earned favorable analysis in the decision handed down by the Second Circuit. The majority opinion, written by Chief Judge Katzmann, determined:

  • Sexual orientation is a function of sex, in that it cannot be determined unless a viewer knows the sex of both parties in a relationship. Therefore, because sex is a protected characteristic under Title VII, so is sexual orientation.
  • Sex stereotyping, which was found to be an unlawful reason for discrimination in the 1989 decision Price Waterhouse v. Hopkins, holds that men should date women and women should date men. Therefore, discrimination against same-sex relationships depends on invoking sex-linked stereotypes.
  • Because Title VII protects employees not only based on their identification with protected categories but also their association with others in protected categories, an employee cannot be fired due to a romantic association with someone of the same sex.

Because lower courts refused to hear Bostock, the case has not yet been analyzed by judges. The Supreme Court will be the first to judge the arguments made by the plaintiff.

What Will This Decision Mean for New Yorkers?

If the Supreme Court decides that Title VII doesn’t provide protection against discrimination due to sexuality, will New York’s law protecting LGBTQ+ workers become invalid? Thankfully, it will not—because our state law does not rely on Title VII to support protections, or the EEOC to enforce them, it will remain illegal to discriminate against workers based on their sexuality in New York.

However, this decision would mean that the EEOC could no longer provide recourse for employees who suspected this brand of discrimination. New Yorkers would have to go through state courts, rather than federal courts, to challenge employers for discrimination based on their sexuality, and in states without explicit protections, workers would not have anywhere to turn. The Supreme Court might not take another case dealing with questions of Title VII and sexuality unless the main question of that case challenged other laws. Therefore, the only way to make sexual orientation a protected class nationwide would be for Congress to pass a bill explicitly outlawing this type of workplace discrimination.

Regardless of the decision, states are free to pass their own laws protecting LGBTQ+ workers against discrimination. However, with some states actively outlawing anti-discrimination measures that are not addressed in the state constitution, workers in other regions might have a long time to wait.

Protecting Employee Rights in New York

Our lawyers at Schwartz Perry & Heller LLP fight for employee rights in New York. Whether you have a #MeToo story, a case for discrimination outlawed by state codes, or a wage claim, we want to hear about it. For over 30 years, we have broken ground in employee protection for New Yorkers. Everyone has the right to a workplace that is both safe and free of discrimination. If your employer refuses to treat you fairly, we are here to help.

Contact us onlineor call (646) 490-0221 to ask our employment lawyers about your case.

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