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Issues in employment discrimination based on sexual orientation

Here at LiLaw Inc., we advise Bay-area employers about how to comply with state and federal anti-discrimination laws so that their workplaces remain free from such incidents. We also help them respond to allegations both in-house and in formal complaints or lawsuits that illegal discrimination or harassment has occurred. 

Gender-based discrimination 

Employment discrimination based on an employee's sexual orientation is a complex and ever-evolving area of employment law. Earlier this year, we posted about an important case in the U.S. Seventh Circuit Court of Appeals. In Hively v. Ivy Tech Community College, the court held in an Indiana case that the federal law prohibiting sex discrimination (specifically Title VII of the Civil Rights Act of 1964) includes discrimination based on sexual orientation.  

Specifically, the opinion found sexual-orientation discrimination to be a kind of illegal sex stereotyping included within the prohibition against gender discrimination. According to CNN, the employer is not going to appeal the case further. 

The EEOC and the DOJ at odds 

The 7th Circuit's conclusion agrees with the opinion of the U.S. Equal Employment Opportunity Commission, the main federal agency tasked with enforcing anti-discrimination laws. Usually called the EEOC, the agency has long followed the policy that employment discrimination based on sexual orientation falls within the protections of Title VII against sex discrimination. 

Interestingly, the U.S. Department of Justice or DOJ under the leadership of President Trump's appointee Attorney General Jeff Sessions has a different opinion. CNN reports that the DOJ has taken an opposite position in a New York case the 2nd Circuit will reconsider early in October -- namely, that Title VII does not prohibit discrimination based on sexual orientation. 

That case, Zarda v. Altitude Express, Inc., involves an allegation that an employer fired a skydiving instructor who was a gay man because of his sexual orientation. The employer instead claims it terminated Zarda for poor job performance.

Will high court decide? 

Many court watchers believe the U.S. Supreme Court will deliver the final word on this issue. After the 11th Circuit sided with her employer, a Georgia hospital security guard has asked the Supreme Court to hear her case alleging that she endured harassment based on her sexual orientation at work and that this was a form of sex discrimination under Title VII. Her petition is currently pending. 

Lawyers representing employers and employees alike will be watching with interest to see whether the high court decides to hear Evans v. Georgia Regional Hospital and take on the issue of sexual-orientation discrimination.   

California employers 

We will continue to advise employers about this evolving area of employment discrimination. While the courts sort out federal law, California state law explicitly prohibits employment and harassment at work based on sexual orientation as well as gender expression and identity. California employers should consult with experienced legal counsel because this area of law is a complex interplay of federal and state law and can involve both agencies and courts.

For example, federal and state law can vary depending on factors like the type of employer, the size of the employer, the type of discrimination, the kinds of damages available and more. 

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