This morning, an en banc panel of the United States Court of Appeals for the Second Circuit, based in New York, held that discrimination on the basis of sexual orientation constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Second Circuit joins the Seventh Circuit Court of Appeals, based in Chicago, to affirmatively protect against anti-gay discrimination in the workplace.
We previously covered the Seventh Circuit's decision here, as well as the decision of the Eleventh Circuit, based in Atlanta, here, which held to the contrary, that anti-gay discrimination doesn't violate Title VII.
In 2015, the U.S Equal Employment Opportunity Commission (EEOC) determined for the first time that sexual orientation discrimination constitutes impermissible sex discrimination, setting forth multiple ways to illustrate such discrimination. The Second Circuit's opinion tracks the EEOC's determination, concluding that:
"Title VII's prohibition on sex discrimination applies to any practice in which sex is a motivating factor.... [S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer's opposition to association between members of particular sexes discriminates against an employee on the basis of sex."
A rift exists among the federal appellate courts on this issue, whether sexual orientation discrimination violates Title VII, so we expect the issue to be decided by the U.S. Supreme Court soon.
The take-away: In Kentucky, the state and federal courts have not expressly declared that sexual orientation constitutes sex discrimination or that it violates Title VII. The Sixth Circuit Court of Appeals, based in Cincinnati, Ohio, and which covers Kentucky, has previously held that Title VII does not protect against anti-gay discrimination in the workplace. However, the tide among the federal district courts is turning, and there are now two federal appellate courts which have concluded that such discrimination is illegal.
Employers must proceed with caution. Any adverse employment action, such as suspension or termination, that is based in any way on an employee's sexual orientation could lead to litigation, which could lead to any number of other adverse consequences, including a public relations backlash.
Employees who believe that they've being discriminated against on the basis of their sexual orientation should submit a written complaint to HR (or to whomever the employee manual requires discrimination and harassment complaints to be submitted) and keep an open line of communication with HR throughout the investigation process.