FLORIDA – November 8, 2016 – As you may know, Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on various protected characteristics, including “sex.” Title VII’s prohibition of discrimination based on “sex” has been broadly construed in the past to prohibit “sexual harassment” and to include “gender” as a protected characteristic. By including “gender” as a protected characteristic, courts have interpreted Title VII to prohibit discrimination against transgender persons, as well as discrimination based on gender/sex based stereotypes. However, many courts have previously found that while “sex” and “gender” are protected characteristics, “sexual orientation” is not a protected characteristic. This appears to be changing.

For a number of years, the Equal Employment Opportunity Commission (“EEOC”) has considered “sexual orientation” to be a protected characteristic. Recent court decisions indicate that some courts appear to agree with the EEOC. On November 4, 2016, in U.S. Equal Opportunity Commission v. Scott, the United States District Court for the Western District of Pennsylvania ruled that “sexual orientation” is a form of “sex” discrimination, and therefore a protected characteristic for purposes of Title VII. This was the first case brought by the EEOC alleging discrimination based on “sexual orientation.”

Further, just last month, the United States Court of Appeals for the Seventh Circuit, in Hively v. Ivy Tech Community College, vacated its prior decision which held that “sexual orientation” is not a protected characteristic for purposes of Title VII and granted a rehearing on the issue. Oral arguments in that matter are scheduled to occur on November 30, 2016. We are also aware of at least one Florida case, Winstead v. Lafayette County Board of County Commissioners, in which the United States District Court for the Northern District of Florida recently held that “sexual orientation” is a protected characteristic for purposes of Title VII. While neither the Supreme Court of the United States nor the United States Court of Appeals for the Eleventh Circuit (which governs Florida) have addressed this issue directly, it appears that the trend is for courts to find that “sexual orientation” is a protected characteristic for purposes of Title VII. Employers would be wise to be ahead of the game and make sure they have policies and practices in place to comply with these developments in the law.