Title VII & Sexual Orientation Discrimination: Trends in Litigation & Legislation

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, district courts have begun to revisit the question. Some courts have used a “sex stereotyping” analysis to broaden the protection of Title VII, while other courts and the EEOC have 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.

The Second, Seventh and Eleventh Circuit Courts are currently addressing sexual orientation discrimination, and many legal scholars believe that federal law is on the verge of “catching up” to the law in dozens of states, which explicitly recognize the rights of LGBTQ people to protection from employment discrimination.

This program, taught by Geoff Mort, Of Counsel at Kraus & Zuchlewski, Michelman & Robinson Partner Christopher 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. Understand 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, 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. Address “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