Last month, I wrote that in the absence of significant Congressional action on the labor and employment front, states and cities are increasingly willing to take steps to improve employment protections. Some courts appear willing to join in – challenging longstanding precedent and finding protections and safeguards not previously recognized.
Four separate decisions in the span of 54 days demonstrate this trend.
The landmark Civil Rights legislation of the 1960’s, Title VII of the 1964 Civil Rights, banned discrimination on the basis of race, color, religion, sex or national origin. Title VII did not expressly ban discrimination on the basis of sexual orientation or trans-gender status. While some state discrimination laws prohibited discrimination against gays and lesbians, virtually every court to look at the issue held that Federal law did not. Typical of such decisions was the holding of the Eleventh Circuit Court of Appeals in Evans v. Georgia Regional Hospital (March 10, 2017).
Seventeen days after the Eleventh Circuit’s Evans decision, the Second Circuit Court of Appeals reached similar conclusion as “binding” precedent, but strongly criticized it. Christiansen v. Omnicom Group Inc. (March 27, 2017). Eight days after Christiansen, the Seventh Circuit addressed the issue in Hively v. Ivy Tech Community College (April 4, 2017) and concluded that discrimination on the basis of sexual orientation was no less discriminatory than discrimination on the basis of gender. Finally, a month later, a lower New York federal district court followed suit, holding that Title VII banned sexual orientation discrimination. See Philpot v. State of New York, et al.(May 3, 2017).
The dizzying speed in which these decisions were issued could herald a major shift in the law – or not. We likely will not know the outcome until the United States Supreme Court resolves the issue. Until then, manufacturers seeking to stay compliant with the challenging legal landscape should conduct periodic reviews of workplace policies and err on the side of caution.