Supreme Court Declines to Clarify Law on Sexual Orientation Discrimination

Allen Smith, J.D. By Allen Smith, J.D. December 11, 2017
Supreme Court Declines to Clarify Law on Sexual Orientation Discrimination

​Employers are stuck with uncertainty over whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. That's because the U.S. Supreme Court announced Dec. 11 that it would not yet resolve a split among the appeals courts over this question.

Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago, predicted that the Supreme Court will eventually resolve the split, unless Congress passes legislation that clarifies the scope of Title VII.

But the high court may wait to see how other appeals courts rule on the issue before granting review. That way, the Supreme Court will know whether the 7th U.S. Circuit Court of Appeals—the one appeals court that has ruled that Title VII prohibits sexual orientation discrimination—is an outlier, said Mark Phillis, an attorney with Littler in Pittsburgh.

Appellate Court Split

The high court declined to review the 11th Circuit's March decision in Evans v. Georgia Regional Hospital that the law does not ban such discrimination. The Supreme Court's denial of review is not a ruling on the merits of the 11th Circuit case, noted JoLynn Markison, an attorney with Dorsey & Whitney in Minneapolis.

In April, the 7th Circuit held that Title VII covers sexual orientation discrimination in Hiveley v. Ivy Tech Community College, a decision that contradicted every other appeals court.

The Supreme Court is likely to one day hear a case to resolve the circuit split even though it declined to review Evans, according to Jennifer Sherven, an attorney with Kaufman Dolowich & Voluck in Woodbury, N.Y.

Shannon Farmer, an attorney with Ballard Spahr in Philadelphia, noted that the 2nd Circuit currently is considering the scope of Title VII. While a 2nd Circuit panel ruled that Title VII does not prohibit sexual orientation discrimination, the full 2nd Circuit has granted review in the case (Zarda v. Altitude Express, Inc.). Its upcoming decision "could widen that split and increase the likelihood that the Supreme Court will weigh in to resolve the issue," she said.

In addition to the appellate court split, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are divided over whether Title VII prohibits sexual orientation discrimination. The Justice Department made the case to the full 2nd Circuit case in oral arguments that Title VII did not bar sexual orientation discrimination. The EEOC argued that it did. 

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The EEOC recently obtained a victory in a Nov. 16 decision awarding $55,500 to a telemarketer for Scott Medical Health Center in Pittsburgh who claimed he had to quit because of sexual orientation discrimination. Employers will have to wait and see whether the defendant appeals this case to the 3rd Circuit. If the medical center does, there will be another opportunity for an appeals court to examine the reasoning underlying the argument that Title VII bars sexual orientation discrimination, Phillis noted.

Other Legal Protections for LGBTQ Employees

Even under the current state of the law, the Supreme Court has ruled that Title VII may shield many lesbian, gay, bisexual, transgender and questioning (LGBTQ) employees from discrimination if they can show they were targeted for failing to conform to gender stereotypes (Price Waterhouse v. Hopkins).

Given that state law prohibits sexual orientation discrimination in 22 states and that there are gender identity protections in 19 states, employers should continue to take all LGBTQ claims seriously, noted Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., and Paul Patten, an attorney with Jackson Lewis in Chicago, in an e-mail. "The overwhelming majority of Fortune 500 companies—and many smaller companies—grant protections based on sexual orientation and gender identity," they wrote.

Legal questions aside, there are many business reasons to avoid workplace discrimination against LGBTQ workers, said Todd Solomon, an attorney with McDermott Will & Emery in Chicago, including boosting employee morale and efficiency, attracting and retaining top talent, and competing in an increasingly diverse marketplace.


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