In Georgia, not yet. Unfortunately, in April 2018, the U.S. Court of Appeals for the Eleventh Circuit has decided that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, national origin, religion, and gender, does not protect sexual orientation. By a 9-2 vote, the full appeals court declined to review a panel decision the discrimination claim of a gay man who claimed he was fired as a child welfare services coordinator after he revealed his sexual orientation. But his attorneys have filed a petition for the Supreme Court to take up his case. So stay tuned.
Within the last year, the Second and Seventh Circuit have reached the opposite conclusion and found that Title VII does protect against sexual orientation discrimination. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).
Unless and until the Supreme Court decides the issue, sexual orientation discrimination is not illegal in Georgia (or Alabama or Florida). Efforts to amend Title VII in Congress to give sexual orientation protected status have failed for years.
This does not necessarily mean that you have no protection from discrimination in the workplace if you are LGBT. Some local entities such as the City of Atlanta prohibit sexual orientation discrimination.
In addition, you cannot be harassed because of your gender. If your supervisor or co-workers harass you because you are the same-sex as them, then this can be challenged under Title VII regardless if the harasser was motivated by sexual attraction.
Most importantly, you cannot be discriminated against because you don’t conform to gender stereotypes. The Eleventh Circuit has held that discrimination against a transgender individual because of gender-nonconformity was sex stereotyping that violates the Equal Protection Clause. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). That precedent would probably be applied to Title VII cases and could be stretched to cover gay, lesbian, or bisexual employees if they could prove that they were discriminated against because they were expected to act a certain way in the workplace because of their gender. But for the time being, they cannot bring a discrimination claim based solely on discrimination based on their sexual identity or preferences. If that sounds like semantics, its because it is the logic the Eleventh Circuit has used here. Remarkably, LGBT couples could get married on a Saturday and be fired on a Monday at work once their employer knew they were married. Thus, marriage equality ironically makes employment discrimination against LGBT workers easier because they might announce their wedding or use their marital status to request spousal benefits. Hopefully, the Supreme Court will clarify this issue soon.
If you are an LGBT individual who believes that you have been discriminated against or harassed because of sexual stereotyping or your sexual orientation, then contact Rob to determined whether you have a case under your circumstances.
