Is Sexual Orientation a Protected Class Under Title VII?

Posted on 6 April 2017 |

sexual orientation protected classIn the past few weeks, several court cases have been argued regarding the extent of protective coverage offered by Title VII of the Civil Rights Act of 1964 -- particularly, whether federal law prohibits workplace discrimination on the basis of sexual orientation.

The conflicting resolution of these cases brings into question established legal precedent and indicates the possibility of wide-sweeping implications on how sexual orientation discrimination is viewed under federal law.

Recent Cases Tackling Sexual Orientation Discrimination Coverage

Evans v. Georgia Regional Hospital

A security guard at Georgia Regional Hospital, Jameka Evans alleged that she was subject to a hostile work environment, including scheduling problems, equipment tampering and being overlooked for promotions -- all due to her status as a lesbian who did not conform with established gender stereotypes.

When the case was brought before a magistrate judge, the suit was dismissed as the judge asserted that Title VII coverage did not include sexual orientation discrimination in the workplace. Early this march, the 11th Circuit U.S. Court of Appeals upheld this decision.

While the appellate court ruled out the possibility for sexual orientation discrimination, it did reaffirm the option for Evans to pursue the case under other established theories of sex discrimination, such as gender non-conformity or same-sex discrimination.

Christiansen v Omnicom Group, Inc.

Back in 2015, Eric Christiansen filed a gender discrimination lawsuit against his employer -- DDB World Worldwide Communications Group Inc. and its parent company Omnicom. According to the suit, Christiansen, who is gay and HIV-positive, experienced a campaign of harassment from his direct supervisor, including jokes and drawings that indicated that Christiansen was "effeminate" and "submissive."

The case was originally dismissed by the 2nd Circuit Court due to an earlier court decision. However, this past March, the 2nd Circuit U.S. Court of Appeals overturned the dismissal.

The appellate court judges determined that the case did have merit under Title VII protection, per a Supreme Court ruling that extended sex discrimination to include "sex stereotyping." 

Recognizing the broader implications of this decision, two of the appellate court judges wrote a concurring opinion to the case that argued that the court should reconsider the validity of the existing precedent and extend Title VII coverage to include sexual orientation.

Hively v. Ivy Tech Community College

Meanwhile, just two days ago on April 4, 2017, the 7th Circuit U.S. Court of Appeals ruled that Title VII did, in fact, cover sexual orientation discrimination.

Per the filed suit, Kimberly Hively, a math instructor at the college, was repeatedly denied promotions and ultimately fired after it became known by the school that she was a lesbian.

Much like Evans and Christiansen, Hively's initial case was also dismissed. However, the decision made this past Monday overturns not only a lower court ruling but also an earlier ruling made by a three-judge panel of the 7th Circuit appellate court -- a move that is highly uncommon.

Going Forward What Should You Do?

While these landmark decisions imply a recognizable sea change in the interpretation of Title VII coverage, the differing outcomes of the 11th, 2nd, and 7th Circuit appellate courts will likely need to be resolved before the U.S. Supreme Court.

As a result, any ensuing court decisions made based on these rulings could likely be overturned depending on the ultimate decision of the highest court in the land.

So, in the face of this shifting legal landscape, how should your campus proceed?

Hopefully, your school has already embraced a culture of fairness and respect for all employees and students, no matter their sexual orientation. And that attitude should continue no matter what.

In addition, bear in mind that while federal law is still up for debate, 32 states already have in place some manner of workplace non-discrimination laws that protect gay and transgender workers.

Further, both the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission have stated that they believe Title VII coverage also extends to discrimination based upon gender identity and that they will pursue cases accordingly.


Ultimately, the final outcome of Title VII coverage is still in a legal gray area, and existing guidelines could change quickly. But by establishing clear, non-discriminatory policies covering hiring, promotion and disciplinary action, you can better protect your organization no matter how these cases ultimately end.

If you would like to learn about how we can help your campus encourage an open, inclusive environment for all employees, request a demo of our courses. Our team would love to work with you to find the training that best matches your school's needs.

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