Title VII and Discrimination Based on Sexual Orientation

Since July 2015, the EEOC has taken the position that Title VII forbids “any employment discrimination based on gender identity or sexual orientation” and that the protections provided by Title VII “apply regardless of any contrary state or local laws.” This spring, the issue has been addressed by three different Courts of Appeals: the Eleventh, Seventh and Second Circuits.  In March, the Eleventh Circuit ruled that Title VII does not cover sexual orientation discrimination.  However, in early April, the Seventh Circuit ruled that Title VII protects employees from discrimination based on sexual orientation.  Less than two weeks later, the Second Circuit ruled to the contrary, and found that claims for discrimination based on sexual orientation are not covered under Title VII.   This conflict sets the issue up for resolution by the U.S. Supreme Court.

Oregon’s anti-discrimination laws have prohibited discrimination based on sexual orientation and gender identity since 2008. And, Washington law has included such protections since 2006.

We will continue to cover developments related to Title VII. Assuming the Supreme Court takes up the issue, and regardless of how it rules, employers in Oregon and Washington are prohibited from discriminating based on an employee or applicant’s sexual orientation or gender identity.  Employers should ensure their policies and procedures reflect these protections.

The EEOC’s Guidance is here: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

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