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Complications for LGBTQ protections under Title VII

The matter of whether LGBTQ employees are protected under Title VII of the Civil Rights Act of 1964 has become an ongoing debate, particularly after the Supreme Court declined to hear a case related to this matter. This issue stems from a 2015 filing, in which a hospital security guard, Jameka Evans, claimed she was discriminated against due to her sexuality and gender nonconformity. The U.S. District Court for the Southern District of Georgia dismissed the case, citing that Title VII does not protect against discrimination pertaining to sexuality. The case was then appealed to the Eleventh Circuit in 2016, where it was later denied.

Lambda Legal, Evans’ representation, asked for a review from the Supreme Court to clarify whether LGBTQ individuals are protected under the same Act that prohibits other forms of workplace discrimination. In December of 2017, the Supreme Court announced that it would not hear the appeal.

Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color, religion, sex and national origin.” The issue, in cases such as these, is the interpretation of “sex.” The Equal Employment Opportunity Commission (EEOC) interprets Title VII to include the prohibition of employment discrimination based upon sexual orientation and/or gender identity, rather than sex alone. This type of discrimination includes firing, not hiring, harassing, or denying equal pay or benefits to an LGBTQ individual. The EEOC has enforced these beliefs in private and federal sector employees, and the organization upholds that Title VII should be interpreted in a way that protects LGBTQ individuals from workplace discrimination.

However, the federal courts of appeal have differing opinions on the interpretation, as does the current Department of Justice. An amicus curiae brief (a type of brief supplied by someone outside of the case, but with information pertaining to it) filed by the Department of Justice lists numerous cases in which Title VII was determined to not protect sexuality or gender identity. When addressing the EEOC’s protection of such matters, the Department of Justice stated that, “the EEOC is not speaking for the United States,” thereby asserting the Department of Justice’s belief that the EEOC is overreaching in its interpretation.

In response to the Supreme Court’s December decision to not hear the case, Sarah Warbelow, the legal director of the Human Rights Campaign, stated that “The Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country. But this was not a ‘no,’ but a ‘not yet.’”

A federal employment attorney can assist federal employees in the LGBTQ community by evaluating their rights and potential recourse in instances of workplace discrimination.