On Demand

Because of Sex? Title VII, Discrimination and the LGBTQ Community on the SCOTUS Docket

1h 4m

Created on November 19, 2019




For many decades federal courts consistently held that Title VII's prohibition of discrimination "because of sex" did not cover discrimination on the basis of sexual orientation. These interpretations often relied on the limited legislative history regarding the inclusion of "sex" in Title VII, or Congress's subsequent failure to amend Title VII to explicitly prohibit sexual orientation discrimination. Lower courts long felt constrained by this precedent, but over the last twenty years, federal courts have begun to revisit the question. Some courts used a "sex stereotyping" analysis to broaden the protection of Title VII, while other courts and the EEOC moved in the direction of simply interpreting the term "sex" to include sexual orientation. These interpretations seemed to gain momentum in 2015, when the Supreme Court recognized the fundamental right to marry for same-sex couples in Obergefell v. Hodges.

More recently, the Second and Seventh Circuit Courts of Appeal have adopted the more expansive definition of "sex" advocated by the EEOC, while the Eleventh Circuit Court of Appeals has rejected this approach. The Sixth Circuit, in a case involving transgender discrimination, has also signaled its willingness to adopt a more expansive view of the term "sex." The U.S. Supreme Court has granted cert to the Second, Sixth, and Eleventh Circuit decisions, and is expected hear an argument in the Fall of 2019. What the Supreme Court will do is uncertain, at best. Some legal observers believe that federal law is on the verge of "catching up" to the law in dozens of states, which explicitly recognizes the rights of LGBTQ people to protection from employment discrimination, but other observers are far less clear. 

This program, taught by Geoffrey Mort, Of Counsel at Kraus & Zuchlewski, Con Edison Associate General Counsel Christopher A. D'Angelo, and Ria Tabacco Mar from the ACLU's LGBT & HIV Project, will cover the various state and federal approaches, how to litigate these kinds of claims, and predictions for the future.

Learning Objectives:

  1. Address the current landscape of federal case law regarding employment discrimination on the basis of sexual orientation
  2. Examine the rationales for, and responses to, decisions finding that Title VII affords no protection to lesbians and gay men in employment
  3. Survey state statutes that prohibit sexual orientation discrimination
  4. Review the Second, Sixth, Seventh, and Eleventh Circuit cases that may change the direction of federal law regarding sexual orientation discrimination
  5. Assess the future safeguards against sexual orientation discrimination, if any
  6. Apply "best practices" for employers in a rapidly changing legal environment
  7. Discuss claims of sexual orientation discrimination in some state courts and probably in at least some federal circuit courts, including best practices during intake

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