Momentum Builds for Recognition of New Protected Class

July 17, 2017, 1:55 PM

On April 4, 2017 the Federal Court of Appeals sitting in Chicago ruled that the chief federal law that prohibits discrimination, Title VII, covers discrimination on the basis of sexual orientation in Hively v. Ivy Tech Community College of Indiana. Noting that the U.S. Supreme Court has not yet ruled on this issue, the Court of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination covered by Title VII. Following this decision, other courts have already begun to agree with the reasoning in this decision that could ultimately lead to national recognition of a new protected class.

The U.S. Equal Opportunity Commission (EEOC) has also taken the position that sexual orientation discrimination is a violation of Title VII and shows no signs of backing off of its efforts to convince courts to go along with this view under the new Administration. And the Trump Administration announced earlier this year that the President will continue to enforce the 2014 Executive Order prohibiting discrimination against LGBT employees by government contractors. According to a White House statement [t]he executive order signed in 2014, which protects employees from anti-LGBT workplace discrimination while working for federal contractors will remain intact at the direction of President Trump.

Whether the Supreme Court will ultimately agree with this developing case law is uncertain. But there is no question that there is growing support for recognition of a new protected class. The Supreme Court has previously recognized in a 1989 decision, Price Waterhouse v. Hopkins, that discrimination against an overly effeminate male or a masculine female violates Title VII since this kind of sexual discrimination perpetuates sexual stereotyping. But our highest court has not yet ruled that it is unlawful to fire someone for actually being gay or lesbian.

Not only does there appear to be a national trend for recognition of this new protected class, but various state and local laws already protect LGBT employees from discrimination and harassment. Accordingly, all human resource professionals may need to commit to training employees in line with these principals and ensure that their EEO policies are revised accordingly to ensure comprehensive coverage of all protected categories.