As the Circuits become further divided on issues of civil rights, the scope of legally protected characteristics under Title VII become harder to predict. After a recent loss in the 11th Circuit, a claimant petitioned the Supreme Court to review the 11th Circuit’s decision that “discharge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d 1335, 1337 (11th Cir. 2018). In its ruling, the 11th Circuit expressly rejected the argument set forth by the Supreme Court in Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998), that same-sex sexual harassment is actionable under Title VII if a person of the opposite sex would have been treated differently.
The 11th Circuit’s holding seemingly follows the Department of Justice’s brief last summer arguing that Title VII as enacted does not cover sexual orientation, and changes to the statute are left to Congress. In contrast with the federal government’s current interpretation and the 11th Circuit’s decision are rulings in other Circuits. For example, the 2nd Circuit has held that Title VII applies because it is necessary to consider claimant’s sex as a factor in considering discrimination on the basis of sexual orientation. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018). Accord Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 358-59 (7th Cir. 2017).
If certiorari is granted, argument will focus, in part, upon the breadth of the ruling in Oncale. Regardless, for many employers, state and local laws and court rulings have expanded legal protections beyond those enumerated in Title VII. The best rule remains – make decisions based on documented, easily explained business reasons.