On Monday, Feb. 26, the Court of Appeals for the 2nd Circuit in New York held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation.
It is a landmark ruling. While many states have enacted laws protecting LGBT workers, no federal law did so explicitly. This meant that in many places throughout the U.S., an employee could be terminated based solely on sexual orientation.
While a significant win for LGBT workers, there may still be legal battles ahead. The Justice Department under President Trump maintains that Title VII was never intended to protect against sexual orientation discrimination. Unusually, this has pitted government lawyers from the Justice Department against government lawyers from the Equal Employment Opportunity Commission (EEOC), which is arguing that the language of the Civil Rights Act also includes sexual orientation as a protected class. The Justice Department has said that the EEOC does not speak for the U.S. government.
Does ‘sex’ include sexual orientation?
Title VII of the Civil Rights Act prevents employment discrimination based on employees’ race, color, sex, religion, national origin or pregnancy. Historically, “sex” has been seen as protecting women from gender discrimination.
However, the 2nd Circuit held that “sex” in the statute also covers sexual orientation. The court reasoned that one cannot consider sexual orientation without first considering the gender of the employee. Therefore, the court held that sexual orientation was a subset of gender and protected under Title VII.
It is not clear yet whether the employer in the case will appeal. If it does, it is not clear that the Supreme Court will take up the case.
What this means for New York employees and employers
In New York, employment discrimination based on sexual orientation has been prohibited since 2003, when New York passed the Sexual Orientation Non-Discrimination Act (SONDA).
Still, it is a significant win for LGBT workers and another warning for employers that terminating or discriminating against an employee based on sexual orientation carries legal risk.
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