Tuesday’s decision said such discrimination violates Title VII of the Civil Rights Act of 1964. This section of the law, also called the Equal Employment Opportunity section, prohibits employers from discriminating against employees on the basis of sex, race, color, national origin or religion. The court interpreted discrimination based on sex to include sexual orientation.
Chris Brook, legal director of the N.C. ACLU, said this type of discrimination is part of sex stereotyping: the idea that men and women should act a certain way based on their gender.
“Employers who would choose to fire someone because they’re gay are saying that men — real men — are only in relationships with women,” he said. “Real women are only in relationships with men.”
Steve Nickles, a law professor at Wake Forest University, said there is precedent against sex stereotyping.
“Sex is not just gender,” he said. “The Supreme Court, years ago, said that (sex discrimination) includes discrimination against somebody because they don’t conform to a gender stereotype.”
The court’s decision specifically dealt with Title VII of the Civil Rights Act, but Brook said it could likely affect other sections of the act as well.
“So that means, if discrimination against gay individuals in the employment context is impermissible per Title VII and its prohibition on discrimination against sex, then it’s also going to be unconstitutional to discriminate based on sexual orientation in the Title IX context, which prohibits discrimination based on sex in the educational context,” he said.
The ruling only affects the 7th Circuit’s jurisdiction — which includes Indiana, Illinois and Wisconsin — but it could also affect other circuit court decisions, said Rob Schofield, director of policy and research for N.C. Policy Watch.
This case dealt with specific details involving a gay employee, and Schofield said there are similar arguments to be made in HB2 litigation.
The N.C. Values Coalition, a vocal supporter of HB2, could not be reached for comment.
Schofield said the court’s opinion suggests movement toward protections for transgender individuals in Title VII and IX contexts.
“I think this is another strike against discrimination against the gay and lesbian community,” Schofield said. “And I think those are similar arguments that we made in our litigation challenging HB2 and we are likely to make in a challenge to HB142.”
This is just one of a series of recent rulings on sex discrimination involving the LGBTQ community, he said.
“We’ve seen the EEOC — the Equal Employment Opportunity Commission — arrive at the same conclusion recently,” Schofield said.
Nickles said the court’s decision takes into account the law and today’s societal norms.
“It is an interpretation of existing law but in light of contemporary movements,” he said.