sexual orientation discrimination

The Obama administration's Equal Opportunity Employment Commission (EEOC) filed two lawsuits on behalf of former employees who claimed they had been discriminated against on the basis of their sexual orientation. In contrast, the Trump administration's Department  of Justice (DOJ) filed an amicus brief in one of these two cases. Here, the DOJ argued that the definition of "sex" within Title VII of the Civil Rights Act of 1964 does not also encompass sexual orientation discrimination. This is because "sex" (the term used in Title VII) and "sexual orientation" (a term not appearing in Title VII), are fundamentally different. The brief asserted that expanding the scope of Title VII to include "sexual orientation" would require legislative action, a position that opposes the prior Obama administration.

The federal circuit courts of appeal are split on the question of whether Title VII's gender discrimination prohibition also encompasses sexual orientation.

While nearly half of the states (along with a number of cities and counties) have laws prohibiting sexual orientation discrimination, other states and municipalities have no laws addressing this matter. Therefore, in jurisdictions where a federal court has not yet ruled on this issue, employers could still face liability under state or local laws. Going forward, the matter will likely require a ruling by the US Supreme Court in order to ultimately resolve the question of whether Title VII's protections extend to sexual orientation discrimination.