In the last six months, the scope of federal protection against discrimination on the basis of sexual orientation (and gender identity) has been a hot topic in the courts and Trump administration. During the Obama administration, federal agencies and the Department of Justice argued in favor of such protection. The Trump administration is taking the opposite approach, and yesterday the Department of Justice filed an amicus brief in the Second Circuit explicitly arguing that Title VII does not prohibit sexual orientation discrimination. The courts are divided. In the spring of 2017, the Seventh Circuit ruled that sexual orientation discrimination is sex discrimination under Title VII, while the Eleventh Circuit rejected that view. The Second Circuit is weighing the issue, and in the meantime, what’s an employer to do?
“We are recommending that employers avoid any knee-jerk reactions,” says Nilan Johnson Lewis attorney Sarah Riskin, who routinely defends employers against discrimination claims. She encourages employers to continue to adopt policies that prohibit discrimination on the basis of sexual orientation, for a few reasons. First, the trend in the courts is leaning in favor of protections for the LGBT community. Second, the Supreme Court’s Price Waterhouse decision is good law no matter the jurisdiction, and Price Waterhouse holds that sex stereotyping claims (i.e., a woman is fired for being too aggressive or a man is fired for being too effeminate) are clearly actionable. Third, regardless of federal law, many state laws prohibit discrimination on the basis of sexual orientation. Fourth, there’s nothing unlawful about extending greater protections than the bare minimum required by the law. Employers should continue to err on the side of caution or face potentially significant lawsuits. To speak with Sarah Riskin about discrimination claims, call Sarah at 612.305.7713 or email her at firstname.lastname@example.org new email.