Sexual Orientation Discrimination

Does Title 7 of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, does that include sexual orientation and gender identity? That is the issue coming up before our U.S. Supreme Court in three different cases.

The first case includes a funeral director who was fired after telling her employer that she was transitioning from a male to a female.

In the second case, a county employee was fired after his employer found out he was gay after it was discovered due to his participation in an LGBTQ softball league.

The third case is about a male skydiving instructor who lost his job after trying to reassure a female client that she didn’t need to worry about a tandem skydive with the instructor because he was gay.

Now it’s important to remember that under Delaware state law you are protected based on gender identity or sexual orientation. So, in Delaware even though we don’t know whether or not you are protected under federal law, we do know you are protected, and you’re entitled to sue under state law.

Previously we had employment attorneys representing plaintiffs’ employees. I’ve gotten around this somewhat because you can sue under Title 7 on sexual stereotypes. For instance, in the Price Waterhouse case and Hopkins, the employee was allegedly denied partnership because she did not fit the firm’s image of a proper woman. According to some partners, she was too masculine or not too feminine enough. The Supreme Court ruled that she had made out a claim under Title 7 because it was based on disparate treatment of men and women resulting from sexual stereotypes.

So, there were times when I filed claims on behalf of homosexuals, gays, and lesbians because they did not fit sexual stereotypes. But this is different in front of the Supreme Court now. This will decide once and for all, hopefully, whether or not you can discriminate under Title 7 based on gender identity or sexual orientation. In each of these cases, the lower courts received inconsistent conclusions.

Either way, there are protections currently under Delaware law and some protection under federal law for individuals that get discriminated against on based sexual orientation or gender identity.

If questions or have been discriminated on based on this or any other protected actions or need any questions answered, please come visit me Ron Poliquin

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