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Title VII of the Civil Rights Act of 1964 – Potential Changes to “Protected Class” in 2020

September 5, 2019
Jacob E. Brown
Posted in: Labor & Employment

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an employee’s membership in a protected class. Specifically, Title VII prohibits employment discrimination because of an employee’s race, color, religion, sex, or national origin. Title VII discrimination claims generally fall into one of three categories: Disparate Treatment, Harassment, and Disparate Impact. Regardless of the category of claim under Title VII, consistent among them all is the prohibition of employment discrimination because of an employee’s protected class – or that employee’s race, color, religion, sex, or national origin.

Since the inception of Title VII, there has been much dispute as to whether “sex” should encompass an employee’s sexual orientation. While the Supreme Court has not yet recognized sexual orientation as being a protected characteristic under Title VII, Bostock v. Clayton County, Georgia is a recent case which may ultimately provide such recognition. In that case, the Plaintiff, Gerald Bostock was the child welfare services coordinator for the Juvenile Court of Clayton County, Georgia. In June of 2013, Bostock’s employment was terminated for “conduct unbecoming of a county employee.” Bostock denied he engaged in misconduct, and alleged that he was terminated for his sexual orientation.

Bostock filed charges against the county, alleging his termination violated Title VII. The county moved to dismiss the case, arguing Title VII “does not protect [Bostock] (or anyone else) from discrimination due to his sexual orientation.” A federal magistrate judge dismissed the case. In 2016, The United States District Court for the Northern District of Georgia affirmed the case’s dismissal, holding “the Eleventh Circuit has . . . foreclosed the possibility of a Title VII action alleging discrimination on the basis of sexual orientation as a form of sex discrimination.” On appeal in 2018, the United States Court of Appeals for the 11th Circuit affirmed the district court’s judgment. In his petition to the United States Supreme Court, Bostock wrote, the “Eleventh Circuit has reconfirmed the split among the Circuits on this critical question of whether Title VII prohibits discrimination against an employee on the basis of sexual orientation.”

The United States Supreme Court has granted review of this case, and will hear argument in October of 2019, with a decision likely to come in the first half of 2020. The Supreme Court’s decision Bostock v. Clayton County, Georgia is anticipated to finally a provide some definitive insight regarding the question of whether the prohibition in Title VII against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

Following the Supreme Court’s decision, employers may experience changes in standard employment practices relating to sexual orientation, and practitioners may likewise anticipate a drastic change relating to Title VII litigation as we currently understand it.