After years of legal battles, the U.S. Supreme Court’s 5-4 ruling on June 26, 2015 to legalize same-sex marriage established a new civil right, handing lesbian, gay, bisexual and transgender (LGBT) rights advocates a historic victory. Unfortunately, when it comes to protections from discrimination on the basis of sexual orientation or gender identity in the workplace, laws vary state by state, and there is no national anti-discrimination law to protect LGBT workers.
The Federal Bar Association’s Labor & Employment Law Conference March 9-10 will examine “Cutting Edge Sex Discrimination Issues: LGBT Coverage Under Title VII.” Join the Labor & Employment Section for this powerful two-day conference in San Antonio, Texas. Gregory T. Juge, an attorney for the U.S. Equal Employment Opportunity Commission (EEOC) and Eduardo Juarez, also an attorney from the EEOC and President of the National LGBT Bar Association, will discuss sexual orientation discrimination, which refers to harassment or differential treatment based on someone’s perceived or actual lesbian, gay, bisexual, transgender or heterosexual orientation.
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits job discrimination based on race, color, sex, religion and nation of origin, however Title VII does not explicitly prohibit discrimination on the basis of sexual orientation, transgender status, or gender identity. Many states and municipalities have statutes that prohibit private employers from discriminating against applicants and employees on the basis of sexual orientation while other states have no anti-discrimination laws.
Outside of the right to marry, there is currently no federal law prohibiting other types of sexual orientation discrimination. As the federal law enforcement agency charged with interpreting and enforcing Title VII, the EEOC concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. Still, EEOC decisions are not binding on federal courts.
Federal law may prohibit discrimination based on sexual orientation, several Seventh Circuit judges implied in Hively v. Ivy Tech Cmty. Coll., 7th Cir. en banc, No. 15-1720, oral argument 11/30/16. The U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.
Judge Frank Easterbrook asked Ivy Tech to address the precedent established in Loving v. Virginia, 388 U.S. 1 (1967), the landmark U.S. Supreme Court decision striking down anti-miscegenation laws. Judge Easterbrook referred to the likelihood that sexual orientation discrimination would be sex discrimination based on the reasoning in Loving. “State law bans marriages between a black person and a white person. And the Supreme Court holds that that is race discrimination. Here we have an employer’s ban on relations between a woman and a woman. Why isn’t that sex discrimination by exactly the reasoning of Loving,” asked Judge Easterbrook.
Many observers believe that it is only a matter of time until a federal appeals court extends Title VII’s safeguards to sexual orientation claims. Register today for the Labor & Employment Law Conference to study these important and timely issues surrounding LGBT rights in the workplace.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.