The U.S. law that prohibits sex discrimination originally was intended to apply to straightforward cases where women were treated differently than men. But back in 1989, the U. S. Supreme Court held that it is illegal to deny a promotion to a woman because she did not conform to gender stereotypes of femininity. In that case, the woman was accused of not “acting like a lady.” Though the court never said she was lesbian, at the time we wondered if the opinion one day would be expanded to prohibit sexual orientation discrimination.

That day has now arrived. The Seventh Circuit Court of Appeals, ruling on a case that arose in Indiana, held explicitly that discriminating against a lesbian is sex discrimination because she does not conform to gender stereotypes. (Hively v. Ivy Tech) Almost simultaneously, the Second Circuit Court of Appeals in New York held the same in a case involving a gay man. (Anonymous v. Omnicon)

In the Indiana case the court said that the woman “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. … [Her] claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).”

The Equal Employment Opportunity Commission already had taken that position, but other federal courts of appeals have held that sexual orientation is not protected by law. As a result of the split of opinions in the courts, one or both of these new cases is likely to be appealed to the U. S. Supreme Court. It could take a year or more before it is decided, and how it will be decided is unknown.

What you should do: Every company can and should set their standards higher than the law. That way, no matter what happens in the courts or Congress, you know you are not vulnerable to suit. Policies that prohibit harassment and discrimination on the basis of sexual orientation are enforceable. Training employees that sexual orientation discrimination and harassment are against your policy will keep you out of court.

Posted 04-11-2017

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.