Sexual Orientation

Sexual orientation discrimination is widespread. It is ridiculous that people would mock, ridicule and treat unfairly anyone simply because of who they love or are attracted to---but it happens everyday.

Tennessee is one of four states that are governed federally by the The United States Court of Appeals for the Sixth Circuit (the Court of Appeals about the District Court and below the Supreme Court). The Sixth Circuit, as it’s know, held that Title VII does not prohibit discrimination based solely on sexual orientation. In Clemons v. City of Memphis, decided on December 28, 2016, the court held an officer with the Memphis Police Department could not state claims for discrimination, harassment or retaliation based solely on his sexual orientation. Clemons alleged that his supervisors voiced disapproval of his homosexual lifestyle and that he was mocked and harassed because of his engagement to another male officer.

Based on these facts the court held that Clemons claim was based solely on his sexual orientation, and not prohibited by Title VII. In reaching its holding the Clemons Court did not overrule the 2006 Sixth Circuit decision of Vickers v. Fairfield Medical Center. Vickers held that while Title VII does not prohibit discrimination based solely on sexual orientation, it does prohibit discrimination based on sex stereotyping. A discrimination claim based on sex stereotyping requires an employee to establish that he or she is being discriminated against based on an observable gender non-confirming characteristic. In other words, a homosexual man is discriminated against because he is not masculine enough, or a homosexual woman is discriminated against because she is not feminine enough.

On April 4, 2017 the United States Court of Appeals for the Seventh Circuit became the first federal court of appeals to hold that Title VII prohibits discrimination solely on the basis of sexual orientation. In Hively v. Ivy Tech Community College the Seventh Circuit held that Ms. Hively’s claim that she was passed over for jobs because she is a lesbian was protected under Title VII. The court specifically held that Title VII applied to this claim without proof that Ms. Hively was discriminated against based on sex or gender stereotyping.

It would not be surprising if The Supreme Court of the United States decided this in the near future. However, till then (and even after), employers will continue to discriminate against people. We will be there to help.

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