- The U.S. Supreme Court will not decide whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation, it announced Dec. 11. The court declined to hear Evans v. Georgia Regional Hospital (No. 15-15234 (11th Cir. 2017), cert. denied, No. 17-370).
- In considering the case, the 11th U.S. Circuit Court of Appeals held that gender nonconformity is covered under the law's sex discrimination protections but that sexual orientation itself, however, is not.
- Lambda Legal and the employee asked the Supreme Court to weigh in, arguing that sexual orientation cannot be separated from gender nonconformity, but it declined.
Without the High Court's intervention, the split among the federal appeals courts will remain. Only the 7th Circuit has held that Title VII prohibits discrimination based on sexual orientation; the 2nd and 11th Circuits have reached the opposite conclusion. (The 2nd Circuit, however, will soon reconsider its ruling, potentially giving the issue another chance at the Supreme Court.)
Still, attorneys are urging businesses to refrain from discriminating against applicants and employees based on their sexual orientation and to address harassment as they would for protected characteristics. The task of separating gender nonconformity from sexual orientation is an involved legal one; it's safer to add LGBT workers to your EEO policy now, legal experts say, and avoid becoming a test case later. Moreover, the U.S. Equal Employment Opportunity Commission takes the position that such discrimination is illegal and it enforces the law in that way; it remains to be seen, however, whether that might change under new leadership.
Other LGBT discrimination cases could certainly end up in front of the High Court, but Lambda Legal has called on Congress to step in and resolve the confusion, urging it to pass a federal law explicitly banning discrimination in the workplace based on sexual orientation and gender identity.