March 21, 2017

Courts still debating whether Title VII covers sexual orientation

Currently, there is no federal law specifically stating that discrimination based on sexual orientation is a form of sex discrimination. However, 22 states and the District of Columbia, as well as hundreds of municipalities have enacted laws prohibiting sexual-orientation discrimination.

And the US Equal Employment Opportunity Commission (EEOC) interprets sex discrimination prohibited under Title VII of the Civil Rights Act of 1964 to also mean discrimination based on sexual orientation or gender identity. We can also look at recent settlements involving health insurance benefits for same-sex spouses as supporting the EEOC’s position.

Late last year, the EEOC announced that a hospital in West Virginia agreed to settle a sex discrimination charge filed by an employee alleging that she was denied spousal medical benefits because she is married to another female.  The employee and her wife sustained financial losses when they had to pay for medical care and services that would have been covered had the employee’s wife been eligible under the hospitals benefits policy.

The parties reached a voluntary settlement through the EEOC’s conciliation process, which includes $8,900 in monetary relief to the employee. The hospital must also communicate to its employees a new anti-discrimination policy that includes making same-sex spouses eligible for employer-sponsored benefits. The hospital must also provide the EEOC with a semi-annual report, indicating if any employees requested benefits for their same-sex spouse, and whether the requests were granted.

Meanwhile, a case involving a community college math professor, who claims she was fired because she is a lesbian, is expected to test whether Title VII explicitly covers sexual orientation as a protected class.  In her 2014 lawsuit, the adjunct part-time math professor claims that because someone saw her kissing her girlfriend goodbye, she was denied a full-time job after applying six times and her contract was not renewed.  The case is pending before the US Court of Appeals for the 7th Circuit in Chicago.

Traliant Insight

While the courts wrestle with the question of whether federal civil rights laws that prohibit discrimination against sex is the same thing as discrimination against sexual orientation, organizations should review and update their compliance training, anti-discrimination and code of conduct policies, employee handbooks and hiring practices to ensure that employees (and their spouses) and job applicants are not treated differently because of their sex, sexual orientation or gender identity.