This morning the United States Supreme Court declined to review a case that would have resolved a circuit split over whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of sexual orientation. As written, Title VII protects against sexual discrimination in employment, but courts across the country have taken different positions as to whether that protection extends to sexual orientation or sexual identity.
In the case the Court declined to review, the United States Court of Appeals for the Eleventh Circuit upheld a lower court decision dismissing a lesbian security guard’s claim that she was terminated by her employer because of her sexual orientation. In contrast, earlier this year, in a landmark decision, the Seventh Circuit ruled that Title VII protects against sexual orientation discrimination in employment, and held that gay and lesbian workers, and by extension, others in the LGBT community, can sue employers for discriminatory employment actions based on their sexual orientation.
Members of the legal and business community had hoped the Supreme Court would settle this thorny issue, and provide guidance to the lower courts as well as employers. However, for now, it remains an unanswered question. For a number of years, the Equal Employment Opportunity Commission (“EEOC”) has adopted an interpretation of Title VII that takes the position that sexual orientation is a protected class, and has brought federal lawsuits against employers on behalf of LGBT employees. Many employers already include sexual orientation as a protected category of worker in their employee handbooks and equal employment statements.