With the #MeToo movement, there has been heightened awareness and actions taken against incidents of sexual harassment and sexual discrimination across many business sectors. There have been long been civil rights laws in place with the intent of protecting workers from sexual discrimination in the workplace and in educational institution. However, discrimination on the basis of an employee's sexual orientation is still a gray area where legislation is concerned. This is changing as recent federal appellate court decisions are reevaluating the extension of both Title VII and Title IX to workplace protections against sexual orientation discrimination. Most educational institutions, such as colleges, universities and many K-12 schools are required to abide by Title IX's sex discrimination protections.
Influence of Title VII on Title IX
Historically, case law that has surrounded how Title VII of the Civil Rights Act of 1964 is interpreted has influenced how Title IX of the Education Amendments of 1972 claims have been handled by the courts. Recent court decisions by the First Circuit, Second Circuit and Seventh Circuit have led to the assumption that sexual orientation discrimination will be considered legal prohibited in the states governed by these three circuit courts. However, in other circuits, there is uncertainty as to whether sexual orientation discrimination is considered unlawful where there are no state protections in place to protect against this type of discrimination. For example. The Eleventh Circuit, which includes Alabama, Florida and Georgia rejected the application of Title VII with application of sexual orientation discrimination claims.
Because there is no standardized application of Title VII, because of ambiguity, educational institutions are at risk of running afoul of protections for sexual orientation discrimination based on their circuit's interpretation of Title VII and its influence on Title IX. The Eighth Circuit recently interpreted that Title VII protects individual against discrimination "because of sex," while Title IX protects by way of "on the basis of sex;" therefore, these phrases should be treated as interchangeable. In other words, the interpretation of Title VII does affect Title IX and affect the protections for both employees and students of educational institutions.
What this Means for Educational Institutions
Despite the confusion over which circuit courts have pushed for sexual orientation discrimination protections, educational institutions that receive federal funding are subject to Title IX, which follows Title VII for guidance. To add to the uncertainty, both the U.S. Department of Education (DOE) and U.S. Department of Justice (DOJ) have recently asserted that sexual orientation discrimination is not prohibited through Title VII. However, the Equal Employment Opportunity Commission (EEOC) maintained in a Second Circuit amicus brief filing that sexual orientation discrimination claims do fall under the auspice of Title VII. California and 21 other states have put protections in place to protect public and private employees against discrimination based on their sexual orientation.
Because federal courts generally rely on cases filed under Title VII to analyze Title IX claims, it is expected that the courts will extend sexual orientation protections to Title IX. Therefore, educational institutions that are covered under Title IX should automatically assume that they cannot discriminate against employees based on their sexual orientation and should implement appropriate civil rights policies.