by Vincent A. Toreno, Esq.

Title VII prohibits several types of discrimination including discrimination “because of sex.” But the courts have refused to accept sexual orientation as a protected class under Title VII. However, court opinions have indicated a shift and suggested that sexual orientation discrimination is in fact sex discrimination. Similarly, the EEOC has recently taken the position that sexual orientation is inherently a sex-based consideration under Title VII. On April 4, 2017, one court agreed – the Seventh Circuit Court of Appeals ruled that Title VII extends to include discrimination based on sexual orientation. This is the first Appellate Court in the country to do so.

Our own Eleventh Circuit Court of Appeals, based on prior precedent, has refused to find Title VII prohibits sexual orientation discrimination. With a split in the Circuits, an appeal to the Supreme Court is likely. While the Supreme Court has not specifically found that Title VII applies to discrimination based on sexual orientation, it has held that “gender stereotyping discrimination” is protected. This means employers are prohibited from discriminating against an employee for that employee’s failure to conform to the “gender stereotype” linked to his or her sex. Examples include a female employee denied promotion because she was found to be too aggressive and behaved in a non-feminine manner; a woman terminated for appearing too masculine by wearing slacks, short hair, and no makeup; or a male firefighter whose appearance and mannerisms were thought to be not masculine enough. Essentially, Title VII protections have been found where an employee is discriminated against for not fitting in with general stereotypes of what society expects.

The fact that gender stereotype discrimination violates Title VII but discrimination based on sexual orientation does not is somewhat confounding since sexual orientation and gender stereotyping are intertwined with each other. In other words, sexual orientation discrimination may simply be another way of saying that the employee does not conform to the gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men.

Now that we have a split in the Circuits about the application of Title VII to sexual orientation discrimination, we expect the Supreme Court will be asked to review the issue. Despite the uncertainty in the federal case law, employers should be aware that some state and local laws provide protections for employees from discrimination based on sexual orientation and/or gender.