As we have previously discussed, there is a circuit split as to whether Title VII's prohibition on sex discrimination protects against discrimination based on sexual orientation. The Second Circuit recently held that it did (based partly on Seventh Circuit precedent), and other circuits, such as the Eleventh and Third, have held that it does not protect against sexual orientation discrimination under its prohibition of sex discrimination. Based on the circuit split, in April, the Supreme Court finally made a decision to grant certiorari to three cases addressing whether Title VII protects against sexual orientation and gender identity discrimination – one of which was the employer's appeal of the Second Circuit case that held Title VII's prohibition of sex discrimination included discrimination based on sexual orientation. A decision on the Supreme Court case is not expected until early 2020.
Perhaps in an effort to moot the need for such a decision, the United States House of Representatives passed a bill on May 17 that would amend several civil rights laws to affirmatively provide protection against discrimination on the basis of sexual orientation and gender identity (lesbian, gay, bisexual, trans and queer) as well as pregnancy and childbirth (the Bill). The Bill passed easily in the Democrat-controlled House but is expected to have more difficulty in the Republicancontrolled Senate. However, the Bill has the support of many large businesses (Apple, Amazon and more than 200 others) and the U.S. Chamber of Commerce, which may convince Republicans to sign on.
Although many states, including New York, have their own prohibitions against sexual orientation and gender identity discrimination – so the Bill and the Supreme Court's upcoming decision may not drastically change the legal landscape there – several states do not have such protections against these forms of discrimination, and the Bill and potential decision will have the effect of creating new protected classes that employers will be required to educate their supervisors, human resources staff and employees on. Additionally, the outcome of the Bill and the Court's decision will have an effect on the forum and remedies that may be available to individuals, even in states that recognize sexual orientation and gender identity as protected classes.
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