Title VII Coverage of Sexual Orientation Left Unresolved by Supreme Court

Author: Michael Cardman, XpertHR Legal Editor

December 12, 2017

The US Supreme Court has declined to hear a case that could have settled the question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation.

Earlier this year, the 7th Circuit Court of Appeals ruled in Hively v. Ivy Tech Community College that Title VII's prohibition against employment discrimination based on sex includes discrimination based on sexual orientation. This set up a split in the circuits with the other appeals courts that have weighed in on the issue, most prominently the 11th Circuit Court of Appeals with its ruling in Evans v. Georgia Regional Hospital reaffirming that Title VII does not prohibit employers from firing or otherwise discriminating employees based on their sexual orientation. But the Supreme Court announced yesterday that it will not hear Evans' appeal.

While federal courts remain split, several state and local laws consider gender identity and sexual orientation to be protected classes, and the Equal Employment Opportunity Commission has taken the position that Title VII covers gender identity and sexual orientation.

This situation poses a challenge for HR, the plaintiff in the Evans case said in her petition asking the Supreme Court to hear her appeal: "If, for instance, an airline has hubs in both Chicago and Miami (as American Airlines does), the human resources offices in both cities should be able to advise management, train supervisors, and inform employees of their rights in the same way. … Yet the current state of affairs precludes such clarity."

With the Supreme Court leaving the split unresolved, it will remain best practice to develop, implement and enforce strong policies prohibiting discrimination, harassment and retaliation based on sexual orientation and gender identity, and to train supervisors accordingly.