Plaintiffs and their attorneys have an increasingly viable argument that Title VII’s definition of “sex” includes sexual orientation and gender identity, expanding employers’ potential liability under federal law. This is based in part on the Equal Employment Opportunity Commission’s (EEOC) firm position under the Obama Administration that both sexual orientation and gender identity are protected categories under Title VII, the major federal discrimination statute. Indeed, the EEOC has identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as one of the foremost national enforcement priorities in their Strategic Enforcement Plan, which spans through 2021. Even the most well-intentioned employers are vulnerable to claims by an aggrieved employee or applicant as well as the possibility of costly, public litigation.

Prior to the Obama Administration’s position, those asserting claims of discrimination based on sexual orientation and gender identity enjoyed little success in asserting claims in federal court.  And efforts to change federal law to provide these protections have historically struggled. Proposed federal law including the Employment Non-Discrimination Act which would prohibit discrimination based on sexual orientation and gender identity, but it has failed to pass Congress year after year. Also more recently, the Equality Act (S. 1858, H.R. 3185), introduced on July 23, 2015, which would amend the Civil Rights Act of 1964, among other laws, to explicitly include sexual orientation and gender identity as protected classes, has yet to progress.

Thus, much of the grassroots efforts to protect the gay community from discrimination focused on influencing state laws and the interpretation of sex discrimination within the states to include protection of sexual orientation and gender identity.  Twenty States and Washington D.C. currently protect both individuals based on sexual orientation and gender identity.

While federal legislative efforts to provide protection have historically failed, two very recent federal court developments set the stage for a likely blockbuster Title VII ruling by the Supreme Court on the matter in the near future.

On March 10, 2017, a majority opinion of a three-judge panel of the Eleventh Circuit (which covers Florida, Georgia and Alabama) in Evans v. Ga. Reg’l Hosp., held that sexual orientation was not protected under Title VII.  Currently, Ms. Evans’ counsel has asked or the full Eleventh Circuit rehear the case and consider overturning the panel.

Even more recently, on April 4, 2017, in Hively v. Ivy Tech Comm. College, the full Seventh Circuit (11 judges in the federal appeals court that covers Indiana, Illinois, and Wisconsin) overturned a prior ruling by a three-judge panel by a margin of 8-3 and found (similar to the Evans case) that sexual orientation was not protected under Title VII.  Thus, the Seventh Circuit has now become the first federal appeals court to explicitly find that sexual orientation was indeed protected under Title VII.

Hence, we currently have a split in the circuit courts on the issue of whether sexual orientation is a protected category under federal law. And it remains to be seen whether the Eleventh Circuit will rehear the Evans matter.

If a rehearing is denied, then question is ripe for Supreme Court review.  If the full Eleventh Circuit does agree to re-hear the Evans case, it may well consider the Hively decision as persuasive (but not binding) authority to similarly overturn the panel decision. Then again, the full Eleventh Circuit might uphold the panel decision and decide protection does not exist under federal law for sexual orientation.

Clearly, this topic has strong implications for businesses and employers. Generally, the Supreme Court would take such a case, especially on a major question of federal law interpretation, to resolve the conflict between the federal circuit courts. However, the Supreme Court’s involvement will not likely occur until the Evans case is finalized within the Eleventh Circuit. Stay tuned as the relevant litigation unfolds!