Does Title VII of the Civil Rights Act prohibit discrimination on the basis of sexual orientation, transgender status or sex stereotyping? We don’t know…yet. Three cases currently pending before the United States Supreme Court should give us an answer. Two of these cases involve sexual orientation discrimination. The third involves discrimination based on transgender status.

The Supreme Court heard oral arguments in October 2019, but we don’t know exactly when the Court will issue its highly-anticipated rulings. In the meantime, here is a brief summary of where things currently stand.

  • Title VII prohibits discrimination “because of…sex,” but it does not expressly prohibit discrimination on the basis of sexual orientation or transgender status.
  • Federal appellate courts are split on whether “sex” under Title VII should be interpreted to include sexual orientation, sexual identity, transgender status or sex stereotyping.
  • The Equal Employment Opportunity Commission has taken the position that Title VII prohibits employment discrimination based on gender identity and sexual orientation. 
  • The Department of Justice has taken the position that Title VII does not prohibit discrimination because of sexual orientation.
  • Some states have enacted laws that expressly prohibit LGBT-related employment discrimination. Others have not.

Since the EEOC began tracking LGBT-related discrimination in 2013, there has been a steady increase in the number of charges filed by employees and the amount of monetary benefits recovered from employers. Depending on how the Supreme Court rules, these numbers may increase dramatically or disappear altogether.

Changing laws and uncertain legal obligations substantially increase the likelihood of claims involving unlawful harassment or discrimination. Employers should carry Employment Practices Liability Insurance to protect against any number of employment-related claims. Employers should also provide sexual harassment training to employees, particularly those in managerial and supervisory positions. Please contact us if you would like to learn more about employment practices liability insurance.