Does Title VII Prohibit Sexual Orientation Discrimination?

Does Title VII prohibit sexual orientation discrimination?  The answer, like many answers in the law is “it depends”.  With this issue it depends on the allegations of the plaintiff and the state in which you live.

The United States Court of Appeals for the Sixth Circuit, the federal court of appeals that governs Tennessee, recently held that Title VII does not prohibit discrimination based solely on sexual orientation.  In Clemons v. City of Memphis, decided on December 28, 2016, the court held that Davin Clemons, an officer with the Memphis Police Department, could not state claims for discrimination, harassment or retaliation based solely on his sexual orientation.  Clemons alleged that his supervisors voiced disapproval of his homosexual lifestyle and that he was mocked and harassed because of his engagement to another male officer.

Based on these facts the court held that Clemons claim was based solely on his sexual orientation, and not prohibited by Title VII.  In reaching its holding the Clemons Court did not overrule the 2006 Sixth Circuit decision of Vickers v. Fairfield Medical Center.   Vickers held that while Title VII does not prohibit discrimination based solely on sexual orientation, it does prohibit discrimination based on sex stereotyping.  A discrimination claim based on sex stereotyping requires an employee to establish that he or she is being discriminated against based on an observable gender non-confirming characteristic.  In other words, a homosexual man is discriminated against because he is not masculine enough, or a homosexual woman is discriminated against because she is not feminine enough.

On April 4, 2017 the United States Court of Appeals for the Seventh Circuit became the first federal court of appeals to hold that Title VII prohibits discrimination solely on the basis of sexual orientation.  In Hively v. Ivy Tech Community College the Seventh Circuit held that Ms. Hively’s claim that she was passed over for jobs because she is a lesbian was protected under Title VII.  The court specifically held that Title VII applied to this claim without proof that Ms. Hively was discriminated against based on sex or gender stereotyping.

The Seventh Circuit covers appeals from federal district courts in Illinois, Indiana and Wisconsin.  Of those three only Indiana lacks a state law prohibiting employers from discriminating on the basis of sexual orientation.

Regardless of whether you are in a state governed by the Hively decision, or a state with a law prohibiting discrimination on the basis of sexual orientation, make sure you investigate all claims of discrimination and harassment promptly and thoroughly.  Furthermore, if an employee makes a claim that he or she is being discriminated against based on sexual orientation and the investigation establishes that discrimination or harassment has occurred, take prompt, corrective action to stop the conduct and resolve the situation.  The failure to do so could result in an expensive and uncertain legal battle.

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