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Despite Fine Line in Cases, Discrimination Against Gays Is Often Illegal and Bad for Business

Full disclosure: I have a dog in this fight. As a gay man, I would be happy if the Supreme Court decided that Title VII prohibits discrimination based on sexual orientation.

Until now, federal appellate courts have always found that Title VII does not protect employees against discrimination based on sexual orientation, including the most recent decision last week by the Eleventh Circuit in Evans v. Georgia Regional Hospital. However, those of us who heard the oral argument before 11 judges of the Seventh Circuit last November 30, 2016 in Hively v. Ivy Tech Community College would not be surprised if a conflict soon emerged among the circuits. (There was also a vigorous dissent in Evans). The Loving v. Virginia arguments that were made in gay marriage cases appear to be resonating with judges who are considering whether sexual orientation may simply be a form of sex discrimination. In other words, if you discriminate against a gay person because he or she is attracted to someone of the same sex, you are essentially discriminating against them because they are failing to conform to a gender stereotype.

However, even if the Supreme Court were to conclude that Title VII’s legislative history precludes such an interpretation, I still believe that there are good legal — not to mention moral, and business reasons — for employers to take steps to protect gay and lesbian employees and develop a culture that is welcoming to LGBT employees.

First, nearly half of the states, and a number of municipalities outside of those states, prohibit discrimination against gays and lesbians in private employment. Gays and lesbians who have entered into legal marriages may also enjoy additional protections in those states that prohibit discrimination based on marital status.

Additionally, even the Eleventh Circuit recognized that gays or lesbians who are discriminated against because they do not conform to gender stereotypes may be able to assert a claim under Title VII. While the straight-acting George Clooney look-alike may be out of luck, any employee who is perceived to be even a “little bit gay” might be covered by Title VII.

Finally, employers who fail to commit to eradicating discrimination against LGBT employees run the risk of encouraging behaviors that could expose them to harassment or hostile environment claims. It is a rare harassment case where the perpetrator was solely motivated by the victim’s choice of sexual partner. People who harass LGBT employees are often influenced by stereotypical views of gender and sexuality and, occasionally, complicated — and repressed — sexual histories. The fine line between whether discrimination is because of the employee’s sex or because of his sexual orientation means that such cases often involve issues of fact that will preclude summary judgment and require an expensive jury trial.

Even if Title VII does not cover sexual orientation, a wise employer will act as if it does.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.