- A worker alleging discrimination and retaliation based on his sexual orientation can continue with his lawsuit, a federal district court has held (Varner v. APG Media of Ohio, LLC, No. 18-cv-706 (S.D. Ohio Jan. 9, 2019)).
- Gary Varner worked for the Athens Messenger delivering newspapers. He claimed, in court papers, that his supervisors and co-workers "constantly harassed" him, verbally and physically, because of his sexual orientation and that supervisors started to build a case against him in retaliation for complaining. After he was fired, he sued, alleging violations of Title VII of the Civil Rights Act of 1964.
- The employer argued that the 6th U.S. Circuit Court of Appeals — the court's controlling circuit — in 2006 held that Title VII does not prohibit discrimination based on sexual orientation. The court, however, was not persuaded. In a more recent 6th Circuit ruling, Stephens v. R.G. &. G.R. Harris Funeral Homes, Inc. (No. 16-2424 (March 7, 2018)), the appeals court held that discrimination based on an employee's failure to conform to sex stereotypes or their transgender and transitioning status, is prohibited by Title VII. It also narrowed its ruling in the 2006 case, the district court said, allowing Varner's suit to continue because his allegations could be reasonably be construed as having been motivated by sex stereotyping and/or gender non-conforming behavior.
The 6th Circuit is one of a few circuit courts that have found LGBTQ protections in Title VII. In Stephens, it held that the law protects transgender workers from discrimination because "it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex" and that "discrimination against transgender persons necessarily implicates Title VII's proscriptions against sex stereotyping."
The 2nd and 7th Circuits have held that the law covers sexual orientation, but the 11th Circuit disagrees. The U.S. Supreme Court has yet to weigh in on the matter, although several cases, including Stephens, could soon be reviewed.
Federal agencies also are in disagreement on the matter. The U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) filed conflicting briefs in Stephens. EEOC has continued to enforce its position, while some states, such as New York, also move to protect LGBTQ workers.
Despite the murkiness, attorneys are encouraging businesses to adopt anti-discrimination policies that will bar discrimination based on sexual orientation and transgender status from the workplace.