LOCATION, LOCATION AND SEXUAL ORIENTATION
Do you remember the simple days when, at least in Michigan, the location of your organization determined whether sexual orientation was a protected class or not? Locally, Kalamazoo, Portage, and Battle Creek have passed ordinances prohibiting discrimination based on sexual orientation. Some other local municipalities did not. That meant that you could legally discriminate based on sexual orientation or gender identity in some of the surrounding areas.
Then along came the EEOC. During the Obama presidency, the EEOC began to interpret Title VII as including sexual orientation as a protected class, just like other sex harassment situations. Inevitably, complaints were made, cases were pursued, and the assumption was that the issue would be decided in the courts. However, that answer did not come as expected since some circuit courts agreed with this interpretation, while others did not. That left us once again with decisions that differed by location.
In September, another wrinkle was added. In one case (Zarda v. Altitude Express, Inc.), a gay employee of a skydiving company was allegedly terminated based upon his sexual orientation. In that case, under direction from the new administration the Department of Justice (DOJ) filed a brief that countered the EEOC’s interpretation of Title VII, effectively putting the Federal government on both sides of the same court case. Ultimately, the 2nd Circuit court did not support the revised interpretation of Title VII and the dismissal of the case was upheld.
With conflicting decisions among the circuit courts and between government agencies, there was speculation that the Supreme Court would decide in the issue in December, but it has chosen not to hear the case. The EEOC has now said that for new cases, they will likely take the location of the employer into consideration. If located in a circuit court region that has agreed with their interpretation of Title VII, they will be more likely to pursue the case.
So what does this all mean for employers? At HRM, we know that the best practice for any organization is to treat people fairly and with respect. Using that as a baseline, our advice is to be aware of which ordinances, laws, or court decisions might apply to your organization, but to treat everyone well, fairly and equally regardless of your location.
If we’ve learned anything by watching these decisions evolve it’s that they will continue to change. Treating people well in every location never seems to go out of style.