One of the interesting byproducts of living in the 21st-century information age is the speed at which information transmits. In this age of smartphones, the world-wide web, and social media, news really does travel fast. Whether you are an LGBT person in the workforce or you’re an employer, chances are you either have read or will soon be reading about the April 4 Title VII decision issued by the Seventh Circuit Court of Appeals sitting en banc. You’ll likely see headlines trumpeting that the decision has “decided” the issue of Title VII and whether or not it bars sexual orientation discrimination. While that’s true in Indiana, Illinois, and Wisconsin, if you’re working or doing business in Georgia, the reality is a bit different.
So what does this alleged “game changer” of a ruling mean for employers and employees in Georgia? The answer is, “Not much… yet.” Georgia is, of course, in the 11th federal appellate circuit. The Seventh Circuit’s rulings have no direct legal effect in Georgia. As has been discussed in this blog, the 11th Circuit’s position is that Title VII does not prohibit employment discrimination based upon sexual orientation. That position was re-affirmed as recently as last month, when an 11th Circuit panel ruled against a lesbian security guard formerly employed by a South Georgia hospital.
So, for now, an employer in Georgia cannot face liability for discriminating against an gay or lesbian worker if the worker brings a Title VII claim that assets sexual orientation discrimination as its foundation. The preceding paragraph in this blog post pointedly uses that word “yet” because this could change relatively quickly. Attorneys for the security guard have indicated that they may ask the full 11th Circuit to hear the case. The full 11th Circuit could decide to follow the Seventh Circuit’s path and declare that Title VII’s prohibitions include sexual orientation discrimination. They could, for example, decide that sexual orientation discrimination is a form of sex stereotyping, which the U.S. Supreme Court announced decades ago was impermissible under Title VII.
On the other hand, the 11th Circuit could choose to refuse an en banc hearing of the security guard’s case or could uphold what the three-judge panel decided. Even if that happened, the issue might not be finished. Especially if the 11th Circuit and Seventh Circuit reach strongly conflicting determinations, the U.S. Supreme Court may choose to take a case on this issue and rule. Alternately, Congress could amend Title VII to include protections against sexual orientation discrimination, but that seems unlikely, at least until the makeup of Congress changes.
So what can an employer or employee in Georgia do? As an employer, you have the option to take a pro-active approach and simply decide on your own accord to create company policies that prohibit sexual orientation discrimination in your business. As noted above, you currently have no federal liability for claims expressly stating a claim of sexual orientation discrimination, so you may also choose to wait to see when (or if) the 11th Circuit or the Supreme Court changes the parameters of Title VII.
As an employee, as things currently stand, you may still have a case if you are an LGBT person and suffer discrimination; it just won’t proceed as a “sexual orientation discrimination” case. Many gay or lesbian discrimination cases also involve forms of gender nonconformity-oriented discrimination, which is a valid legal basis for you to pursue a federal Title VII claim in Georgia.
In this, as with any fast-evolving area of the law, it is vital to have counsel who can provide you with not only thoughtful advice and diligent advocacy but also the latest information. The skilled Georgia sexual orientation discrimination attorneys at Mays & Kerr offer our clients all of these things. Our attorneys can help you better understand what is changing in the law and what all of that means for you.
To speak with one of our lawyers about your case, call 1-877-986-5529.
More blog posts:
11th Circuit Panel: Sexual Orientation Discrimination Isn’t Impermissible Sex Discrimination Under Title VII, Atlanta Employment Attorneys Blog, March 22, 2017
Seventh Circuit Rejects Employee’s Title VII Case Based on Sexual Orientation; 11th Circuit Considers Similar Issues with Georgia, Florida Employees, Atlanta Employment Attorneys Blog, Aug. 5, 2016