EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited

Laura Gerdes Long

By Laura Gerdes Long

In its list of protections against discrimination, Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

As its legal basis for concluding that sexual orientation and gender identity are covered by Title VII, the EEOC uses Supreme Court case Price Waterhouse v. Hopkins, which holds employment actions motivated by gender stereotyping are unlawful sex discrimination, along with more recent court decisions(Chavez v. Credit Nation Auto Sales, L.L.C.; Baker v. Aetna Life Ins., et al.; Fabian v. Hosp. of Central Conn; Lewis v. High Point Regional Health Sys.; Hively v. Ivy Tech Cmty. Coll. of Indiana). Although Congress has not amended Title VII to specifically include sexual orientation and gender identity as protected, the EEOC has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The EEOC states these protections apply regardless of any contrary state or local laws; however, the Missouri Court of Appeals appears unfazed.

In 2015, addressing the issue on first impression, the Missouri Court of Appeals held in Pittman v. Cook Paper Recycling Corp. that the Missouri Human Rights Act (MHRA) does not prohibit discrimination based on a person’s sexual orientation. And as recent as July 18, 2017, Missouri’s Court of Appeals further affirmed and held that gender identity is not covered under the MHRA in R.M.A. by Appleberry v. Blue Springs R-IV School District.

Despite those rulings, cities within Missouri and other states are enacting laws that prohibit discrimination based on a person’s sexual orientation and gender identity, e.g., St. Louis City Ordinance 67119 and St. Louis County Ordinance 202.270 – which both prohibit discrimination based on sexual orientation.

Employers, amidst the chasm of contradictory precedent, are precariously positioned and should exercise caution when making employment decisions based on an employee’s sexual orientation or gender identity. Notwithstanding the apparent state of contradiction in legal precedent, some courts and general societal norms do appear to favor enveloping sexual orientation and gender identity as protected under Title VII, as held in Hively v. Ivy Tech Cmty. Coll. of Indiana.

Posted by Attorney Laura Gerdes Long. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities.

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