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Discrimination Based on Gender Identity and Preference No Longer Allowed

By Drew M. Smith

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of color, race, sex, nationalities, or religion. Recently, the 7th circuit clarified the discrimination laws regarding gender identity and preference. The legal definition of discrimination varies by state. Some states have the classes outlined in the 1964 Civil Rights act, like sex and race. Others expand to include various disabilities as defined by their laws. But the legal battle of gender identity becomes mired in controversy because it was not specifically outlined in the original law.

The Civil Rights Act of 1964 was passed, in part, due to the protests that came about in the prior decade. This was a step in the direction to end or mitigate discrimination throughout the U.S. The original act covered discrimination based on race, creed, color and age. Over time this expanded to include sex through laws like Title IX. Some states have expanded this to include disabilities. New Jersey for example has 29 classes of discrimination including what is defined as a disability and for gender identity.1 But many states do not have the latter and are more hesitant to change these laws.

On April 5th, this seemingly changed. In a case from the 7th circuit court of appeals, a woman sued a school in Indiana where she was employed, allegedly based on her sexual preference. The plaintiff, who identifies as lesbian, claimed the school refused to hire her on as a full time teacher because of her sexual orientation. Up until she was released, she was a part-time instructor for 14 years and had been refused an interview for a full position.2 In an 8-3 ruling, the court agreed with her in that they could not distinguish sexual identity in terms of discrimination. In line with other rulings, the concurring judges ruled, “as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex."3

In terms of workplace discrimination, the court ruling affects all 50 states. It means that those who identify with the LGBT community can now have standing to sue an employer if they feel they were being discriminated due to gender identity. A court ruling in the 11th district of Georgia a month prior upheld a dismissal that the plaintiff could not sue based on anti-gay discrimination. With the 7th district’s ruling, this case may be reviewed and reheard.4

Although discrimination of anyone should not be tolerated, this really puts more onuses on an employer to ensure all employees are treated fairly. We recommend companies update their current employee manuals, policies and procedures to address the new ruling.



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