Key Harrington Barnes, PC

Is Discrimination Based On Sexual Orientation Illegal?

Most employers know that workplace discrimination is illegal. They create policies and procedures, implement trainings and take other steps to ensure that their workplace is free from discrimination in any form. Employers do this not only to avoid wrongful termination claims and other employment litigation, but to ensure a happy, productive workforce.

However, discrimination laws may not be as clear as some believe them to be, particularly when it comes to LGBT employees.

Civil Rights Law Does Not Clearly Protect LGBT Workers

Title VII of the Civil Rights Act bars workplace discrimination based on sex. The Obama Administration and the Equal Employment Opportunity Commission both stated that this includes sexual orientation. The Trump Administration, according to an article from the Washington Post, is taking a stand based on a much more literal interpretation of the law.

In response to an LGBT discrimination case that is currently being reviewed by the U.S. Court of Appeals, the brief from the Trump Administration states that "sex" is usually seen as meaning "biologically male or female," and does not refer to sexual orientation. In other words, it protects a woman from being discriminated against because she is a woman. It does not protect someone who has been discriminated against for being LGBT.

The Washington Post speculates that the highly contentious matter will ultimately have to be resolved by the Supreme Court.

What Does This Mean For Employers?

While there is not a clear answer in the matter at this point, employers may want to take this opportunity to review and update their discrimination prevention policies and practices to ensure that they are aligned with current civil rights laws. Proactive steps can prove extremely valuable in terms of avoiding costly discrimination claims.

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