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Friday January 15, 2016

Does sex discrimination equal sexual orientation discrimination
posted by Thomas Ebendorf
Tags: In the news 

Title VII of the Civil Rights Act of 1964 is the primary federal law prohibiting discrimination in employment. This law establishes certain “protective classes” that are protected against discrimination by an employer. Included in this list is a prohibition against sex discrimination. For more than 50 years, federal and state courts have consistently held that an employer who treats an employee less favorably because of his or her gender is violating Title VII and/or a comparable state law. In Kentucky that law is the Kentucky Civil Rights Act. Now, a new question arises. Does the prohibition against sex discrimination include a prohibition based on sexual orientation?

This question is now pending before the United States Court of Appeals for the Eleventh Circuit in the case of Burrows v. The College of Central Florida. The United States Equal Employment Opportunity Commission recently submitted a friend of the court brief, arguing that Title VII does prohibit sexual orientation discrimination. The Florida United States District Court dismissed Burrows’ claim, finding that a claim of sexual orientation discrimination was not cognizable under Title VII. The EEOC argues that that finding was in error because, they argue, sexual orientation discrimination necessarily involves sex stereotyping as it results in the adverse treatment of individuals because their orientation does not conform to heterosexually defined gender norms. The agency goes on to argue that such discrimination based on gender stereotypes violates Title VII, and is consistent with previous rulings of the Court which have routinely held that associational discrimination is actionable under analogous circumstances in implicating race. Finally, the EEO argues that since Title VII generally prohibits sex-based considerations in the employment context, discrimination based on sexual orientation necessarily requires an impermissible consideration of an individual’s sex.

Although the Eleventh Circuit Court of Appeals does not include Kentucky, if the EEOC’s argument holds, the implications suggest that future challenges in Kentucky could be made.