Courts Boost LGBT Protections

A federal appeals court in Chicago is the latest to rule that the Civil Rights Act of 1964 covers sexual orientation. Despite conflicting decisions, some lawyers say legal the legal issue is nearly settled.

Tuesday, April 11, 2017
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Recent federal court rulings suggest it's only a matter of time before a new category of worker will be protected from discrimination under the 1964 federal Civil Rights Act: those who identify as gay or lesbian.

On April 4 came the most sweeping ruling yet. The Chicago-based Seventh U.S. District Court of Appeals concluded that Title VII of the Civil Rights Act applies to LGBT workers even though the landmark law explicitly bars employment discrimination based only on race, color, religion, national origin and "sex" -- but not "sexual orientation."

That omission has led some courts to favor employers sued under the law. But a growing number of judges have extended Title VII to sexual orientation based on U.S. Supreme Court findings that the law protects workers who face discrimination because they don't conform to "gender stereotypes."

The latest opinion, signed by Seventh Circuit Chief Judge Diane Wood, is the first appellate ruling to support the argument that sexual orientation should be covered, says JoLynn Markison, a partner in the Chicago office of the international law firm Dorsey & Whitney. "This is the first decision that says discrimination based on sexual orientation is sex discrimination, by definition," she says.

Seven of 11 judges on the appeals court joined Wood's decision. It came soon after two other federal appellate rulings that reached different conclusions. Three-judge panels of the Second Circuit, based in New York, and Eleventh Circuit, based in Atlanta, concluded that sexual orientation isn't covered by Title VII -- until Congress amends the law or the Supreme Court directly rules otherwise.

Most experts think the former is unlikely in the near future. But the high court could very well weigh in soon. With conflicting appellate rulings, "at some point the Supreme Court is going to have to take a position on this issue," Markison says.

That decision should take into account not just the literal wording of the Civil Rights Act, but also "what's happened in the last 50 years" in society and in the law -- including the court's own decision in 2015 to legalize same-sex marriage, she says.

Plaintiffs who lost the rulings by the Second and Eleventh Circuits are more likely to appeal than is the defendant who lost before the Seventh Circuit due to practical considerations involving timing, says Robin Shea, a partner with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C., who closely follows this area of the law The Second Circuit judges virtually drew the plaintiff a map for an appeal, suggesting they were open to the gender-stereotyping argument that prevailed in the Seventh circuit.

One question mark remaining is whether the Equal Employment Opportunity Commission, which has strongly backed the broader interpretation of Title VII, will continue to do so under the Trump administration.

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Shea says it's not clear that the commission will necessarily pull back under the new president's appointees, despite his general stance on corporate regulation.

"I'm not convinced that a radical change is forthcoming from the Trump administration," Shea says. "I would expect the agency under President Trump to be less aggressive on LGBT issues than the Obama EEOC was, but not necessarily to reverse positions."

Markison says it may not matter much what position the agency takes.

"I'd like to think the EEOC will keep the same tack" it took during the Obama years, she says. But "regardless of what the Trump administration decides, the tide has turned" on this issue in the courts, she says.

And Markison, like Shea, believes employers should treat LGBT discrimination as though its illegality was already a settled matter.

"I tell my clients the writing is on the wall," she says. And in any case "it makes good business sense" to avoid anything that looks like discrimination on the basis of sexual orientation, given potential effects on an employer's public image and its ability to recruit talent, Markison says. "Even if that's not legally required."

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