Hunton Employment & Labor Perspectives

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.

After languishing on the docket for almost a year, the United States Supreme Court agreed today to hear three cases concerning the scope of Title VII’s protections for LGBT employees.  The Court is now set to decide two separate, but related questions: (1) whether Title VII protects against discrimination on the basis of sexual orientation; and (2) whether Title VII protects against discrimination on the basis of transgendered status.

As we previously reported here, here, and here,  there has been a wave of federal court litigation over the last two years on this topic, with various ...

In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation.  The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII.  Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.

It has been ironclad law since the enactment of the Title VII of the Civil Rights Act in 1964 that the Act’s prohibition against discrimination “because of . . . sex” does not include sexual orientation.  Federal law does not prohibit employers from terminating someone for being gay or lesbian.  For now, at least.

The U.S. Court of Appeals for the Eleventh Circuit (covering Florida, Georgia, and Alabama) confirmed that proposition this month in Evans v. Georgia Regional Hospital.  On one hand, the court’s holding reinforced what it and every other federal appellate circuit already had determined.  On the other, the court showcased perhaps the most heated internal judiciary battle yet on this issue, which has percolated at high temperatures for the past few years.

The Trump Administration will leave in place an executive order signed by President Barack Obama, which bans sexual orientation and gender identity discrimination by federal contractors.  President Obama signed the order in 2014.  By doing so, he amended and expanded previous executive orders signed by Presidents Nixon and Clinton, which ban discrimination by federal contractors on the basis race, color, religion, sex, national origin, handicap, status as a parent, and age.

On March 1, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) sued employers for the first time for sexual orientation discrimination. The EEOC filed lawsuits in federal courts in Pittsburgh and Baltimore against manufacturing and health care employers for unlawful sex discrimination on behalf of employees alleging they were harassed and discriminated against based on their sexual orientation.

The Equal Employment Opportunity Commission (“EEOC”) is asking the Eleventh Circuit Court of Appeals to recognize that discrimination based on an employee’s sexual orientation constitutes unlawful discrimination “because of . . . sex,” in violation of Title VII of the Civil Rights Act of 1964.

The EEOC advances this argument in an amicus brief in support of Barbara Burrows, a lesbian college professor and administrator who claims she was subjected to sex discrimination by her former employer, the College of Central Florida, based on her same-sex marriage and how she looked and acted. The District Court granted summary judgment in favor of the College, holding that Burrows’s sex discrimination claim was “merely a repackaged claim for discrimination based on sexual orientation, which is not cognizable under Title VII.” Burrows appealed, and the case is currently pending before the Eleventh Circuit.

On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.

In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases.

The Department of Labor has announced the release of a Final Rule implementing Executive Order 13672, which prohibits discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. Executive Order 13672, signed by President Obama on July 21, 2014, amended Executive Order 11246 by adding sexual orientation and gender identity to the protected categories provided in the latter EO. The Final Rule will be effective 120 days after the date of its official publication in the Federal Register and will apply to government contracts entered into or modified after the effective date.

Executive Order 13672 went into effect on July 21, 2014 and amended Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes.  Executive Order 13672, however, applies only to contracts entered on or after July 21, 2014.  The Office of Federal Contract Compliance Programs (OFCCP) has now issued Directive 2014-02, which interprets the prohibition against sex discrimination in Executive Order 11246 to include discrimination on the basis of gender identity and transgender status.  This means that contractors and subcontractors with contracts that predate July 21 can still be held liable for discrimination on the basis of gender identity and transgender status.