On October 10, 2017, 76 companies filed a brief with the United States Supreme Court urging it to review Evans v. Georgia Regional Hospital. The companies include Citrix Systems, Inc., RBC Capital Markets, Microsoft, Morgan Stanley, Google, Apple, American Airlines, Facebook, Uber, Starbucks, and the Miami Heat NBA franchise. In April 2015, the plaintiff in the case, Evans, sued her former employer, Georgia Regional Hospital, alleging she was discriminated against because of her sexual orientation and nonconformity with gender norms in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). The U.S. District Court dismissed Evans’s complaint, ruling Title VII does not cover sexual orientation discrimination. The case was appealed to the Eleventh Circuit Court of Appeals (covering Georgia, Alabama, and Florida), but in March 2017, the three-judge panel of that court upheld the district court ruling. The case has now been appealed to the U.S. Supreme Court. The companies who signed the brief have urged the U.S. Supreme Court to rule that Title VII covers claims similar to the one Evans brought.

Historically, Title VII had been interpreted to not cover sexual orientation or gender identity harassment and discrimination. Beginning in 2015, the Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcing Title VII, began accepting Charges of Discrimination that allege harassment or discrimination based on sexual orientation and transgender status. In April 2017, the Seventh Circuit Court of Appeals (covering Indiana, Illinois, and Wisconsin) ruled Title VII prohibits discrimination based on sexual orientation. We previously wrote about that case, Hively v. Ivy Tech Community College.

Since Hively, the EEOC has continued to enforce Title VII under the interpretation that it covers sexual orientation and gender identity discrimination. The U.S. Department of Justice (“DOJ”), however, recently took the position that Title VII does not cover sexual orientation and gender identity. In a strange circumstance, the DOJ and the EEOC have filed competing briefs in a case in front of the Second Circuit Court of Appeals (covering Connecticut, New York, and Vermont), with the two federal agencies arguing for opposite interpretations of a law, Title VII, they each have a role in enforcing. That case is Zarda v. Altitude Express.

The number of EEOC Charges alleging sexual orientation and gender identity has increased over the past few years, and there are now conflicting Circuit Court rulings on whether Title VII covers those claims. Prudent employers should consult with counsel and determine whether to modify employment policies to include sexual orientation as a protected characteristic and provide training to managers to reduce the likelihood of a claim of discrimination or harassment based on sexual orientation while awaiting a possible U.S. Supreme Court ruling clarifying the issue.

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