Currently, people who live in New York, Connecticut, Vermont, Indiana, Illinois, or Wisconsin, are prohibited by federal law from being fired because of sexual orientation, while in Georgia, Alabama, and Florida there is no such prohibition. In the other states the issue is unresolved. Because the circuit courts are split, the Supreme Court will likely decide the issue in the near future.

On Monday [February 26], the Court of Appeals for the Second Circuit issued a ruling that discrimination based on sexual orientation and gender non-conformity are prohibited under Title VII of the federal Civil Rights Act of 1964.

As previous federal courts have noted, when Title VII was adopted the word ‘sex’ was understood to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the courts termed ‘biological sex,’ namely reproductive organs. But the Obama administration’s Equal Employment Opportunity Commission (EEOC) began interpreting the word “sex” to include “gender identity.” (In separate cases, the Seventh Circuit agreed and the Eleventh Circuit disagreed with this revisionist interpretation.)

In this latest case, the Second Circuit ruled that discrimination based on sexual orientation is a proxy for sex discrimination:

To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently “but for” his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.

The Second Circuit asked the EEOC—the agency charged with enforcing Title VII—to file an amicus brief in the case. The EEOC argued that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex” and stated that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

The Department of Justice was not asked to weigh in, but filed an amicus brief arguing against the EEOC, saying this issue has been “settled for decades” and that Title VII does not prohibit sexual orientation discrimination “as a matter of law.”

Currently, people who live in New York, Connecticut, Vermont, Indiana, Illinois, or Wisconsin, are prohibited by federal law from being fired because of sexual orientation, while in Georgia, Alabama, and Florida there is no such prohibition. In the other states the issue is unresolved. Because the circuit courts are split, the Supreme Court will likely decide the issue in the near future.

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