Seyfarth Synopsis: Increasingly, courts have held that discrimination on the basis of sexual orientation and gender identity violates Title VII. Federal district courts in Nevada and Pennsylvania have recently joined their ranks. Nonetheless, the issue remains unsettled.

In the previous two months, federal courts in Nevada and Pennsylvania held that Title VII’s prohibition on sex discrimination includes discrimination based on gender identity and sexual orientation, respectively. These rulings accompany the Seventh Circuit’s recent decision to vacate its panel ruling that Title VII did not extend to claims of sexual orientation discrimination and to re-hear the case en banc.

In Roberts v. Clark County School District, a transgender police officer brought suit in the District of Nevada after the Clark County School District prohibited him from using either the men’s or women’s restrooms. The school district argued in its motion for partial summary judgment that Title VII only prohibits discrimination based on “biological sex.” In an October 4, 2016 ruling, the court disagreed and “join[ed] the weight of the authority” concluding that discrimination based upon an individual’s transgender status violated Title VII. It further concluded that the plaintiff was entitled to summary judgment on his discrimination claim, as he was “clearly treated differently than persons of both his biological sex and the gender he identifies as - in sum, because of his transgender status.”

In EEOC v. Scott Medical Health Center, P.C., the Equal Employment Opportunity Commission (EEOC) sued a pain management and weight loss clinic and alleged that a gay male employee was constructively discharged after a manager created a sexually hostile work environment. The complaint recited a number of the manager’s alleged homophobic slurs and statements. The defendant moved to dismiss the complaint on the grounds that Title VII does not protect discrimination on the basis of sexual orientation. The court denied the defendant’s motion exactly one month after the Roberts decision. The court remarked that “the singular question” is “whether, but for [the employee’s] sex, would he have been subjected to this discrimination or harassment.” The court thought not and held that Title VII’s “because of sex” provision prohibits discrimination on the basis of sexual orientation.

Of course, these decisions are not the final word. As President-elect Trump assembles his administration, it is not yet clear whether the executive branch and its agencies will depart from the position that the protections of Title VII extend to LGBT statuses. Additionally, the U.S. Supreme Court has agreed to hear an appeal which asks the Court to weigh in on the issue of restroom access for transgender students. While the appeal directly implicates Title IX, the ruling could also impact courts’ interpretations of prohibitions on sex discrimination under Title VII.

Given this uncertainty and the patchwork of court decisions across the country, employers should consult with counsel to review their policies, practices, and procedures as they relate to sexual orientation and gender identity claims.