Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any educational program or activity that receives federal funding. Many K-12 educational institutions and nearly all colleges and universities are subject to Title IX’s sex discrimination protections. Title IX and Title VII of the Civil Rights Act of 1964 both protect employees against sex discrimination in the workplace, yet neither law expressly prohibits discrimination on the basis of an employee’s sexual orientation. Since case law interpreting Title VII generally influences how courts assess Title IX claims, it is important for educational institutions to closely monitor important developments in Title VII rulings pertaining to sexual orientation discrimination.

Several recent federal appellate court decisions have established that Title VII extends workplace protections to sexual orientation discrimination claims. For employers covered by Title VII in these circuits, the picture has crystallized and employers should assume that sexual orientation discrimination is legally prohibited. Specifically, the First Circuit (Massachusetts, Rhode Island, New Hampshire, Maine and Puerto Rico), Second Circuit (New York, Connecticut and Vermont) and Seventh Circuit (Illinois, Indiana and Wisconsin) have allowed Title VII causes of action on the basis of sexual orientation discrimination.

Yet, outside of these three circuits, it is not clear whether Title VII covers sexual orientation discrimination claims or whether such discrimination is unlawful in the absence of state laws that may cover this type of discrimination. For instance, the Eleventh Circuit (Alabama, Florida and Georgia) has rejected the application of Title VII to sexual orientation discrimination claims. Therefore, the most practical advice is for employers to apply the law in their jurisdiction in order to determine whether sexual orientation is a protected discrimination category under Title VII. In the absence of unambiguous appellate court guidance, it is safest to assume that sexual orientation discrimination may be illegal under Title VII.

The landscape is murkier for educational institutions who receive federal funding and are therefore subject to Title IX. For these employers, Title IX’s sexual discrimination protections extend not only to students, but also to employees, namely faculty and staff. Educational institutions may be unsure about whether Title IX prohibits sexual orientation discrimination because they are receiving inconsistent messages from the federal courts and also from the regulating federal agencies and states. The U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) have both recently taken the position that Title VII does not prohibit sexual orientation discrimination as a matter of law. On the other hand, the Equal Employment Opportunity Commission filed an amicus brief in the Second Circuit’s Zarda v. Altitude Express case maintaining that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” In addition, twenty-two states, including California, protect both public and private employees from discrimination on the basis of their sexual orientation.

Federal courts often rely on Title VII cases in analyzing Title IX claims, therefore it is reasonable to conclude that courts will similarly extend sexual orientation protections under Title IX. Notably, federal appellate courts appear to be headed toward extending Title VII’s discrimination protections to cover sexual orientation. Accordingly, educational institutions should likely assume that courts will apply the same reasoning in Title IX, namely by recognizing claims of sexual orientation discrimination in employment. Educational institutions covered by Title IX should assume that sexual orientation is protected and implement appropriate civil rights policies. The federal agencies (DOJ and DOE) may take an alternate position, but the federal courts have demonstrated their willingness to reject agency guidance.