The Issue of Sexual Orientation has been settled, or has it?

by Michael Haberman on March 6, 2018 · 0 comments

Another court interprets Title VII as protecting sexual orientation.

In Title VII of the Civil Rights Act, there is no expressed protection for sexual orientation. However, during the Obama administration, the EEOC ruled that sexual orientation is protected under sexual discrimination provisions of Title VII. When the country switched over to the Trump administration, the Department of Justice said that sexual orientation is not covered by Title VII. This position led to the EEOC and the DOJ going head-to-head in court. Did this court battle settle this issue? The answer is both yes and no.

How many Courts of Appeals?

In the Federal system, there are 13 courts of appeals. Eleven of these are the numbered courts we hear about all the time. These have geographical boundaries. There is a court of appeals for Washington, D.C. and then another for the Federal system. Generally, the cases we hear the most about are the first 11 that cover the states. When a case is decided in a district the results of that case only apply to the residents and organizations that reside in that district. If the case is then appealed to the Supreme Court of the United States, if they decided to hear the case, then their decision is what may apply to the entire United States. (I am sure I have simplified this process, my apologies to my attorney friends.) To date three of the 11 numbered circuits have ruled on the question of sexual orientation.

The rulings

The Eleventh Circuit agreed with the Department of Justice, saying that sexual orientation is not protected by Title VII. Two other circuits, the 7th, which covers Illinois, Wisconsin, and Indiana, and the 2nd Circuit, which covers New York, Vermont, and Connecticut, have both ruled that sexual orientation is covered by sexual discrimination. The case in the 2nd Circuit is where the DOJ and the EEOC went head-to-head. You can read more here and here. The second article is particularly interesting because the writer, attorney Robin Shea, constructs an entire debate around the argument. She suspects, as do I, that we will see more cases being brought until at some point the U.S. Supreme Court will be forced to hear a case and render a decision.

I have long said that as the tide of public opinion swings in favor of protected sexual orientation that we would see court cases and eventually legislation offering that coverage. With a Supreme Court ruling on such a case, we will have the interpretation that sexual orientation is already covered by legislation through Title VII, making any further legislation unnecessary. Only time will tell.

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