As the latest news cycle reminds us, sexual harassment continues to plague American workplaces. In addition to affecting leadership confidence, employee morale, and public opinion, claims of sexual harassment carry with them another negative: Litigating sexual harassment claims is expensive.
Earlier this year, I predicted the issue of sexual-orientation discrimination was headed all the way to the United States Supreme Court. On September 7, 2017, the issue did, in fact, reach the Supreme Court when the Lambda Legal Defense and Education Fund filed a petition for a writ of certiorari on behalf of Jameka Evans. Ms. Evans had sued her employer for allegedly firing her for being a lesbian.
Odd, bizarre, contradictory, based on gossamer-thin distinctions—all these words have been used to describe the state of the law about employment discrimination based on sexual orientation.
In a case of first impression, Quigg v. Thomas County School District, the U.S. Eleventh Circuit Court of Appeals rejected the burden-shifting framework (known as “McDonell Douglas”) established by the U.S. Supreme Court in 1973 for cases involving mixed-motive discrimination claims. Instead, the Court adopted a less stringent standard, allowing claims to proceed where the plaintiff is able to show that (1) the defendant took an adverse employment action against the plaintiff and (2) a protected characteristic was a motivating factor for the adverse employment action.
In a recent decision about an appeal from the U.S. Department of Transportation, the Equal Employment Opportunity Commission (EEOC) left no question it views sexual orientation discrimination as falling within the protections of Title VII of the Civil Rights Act of 1964. The EEOC stated its intent to treat all sexual orientation discrimination as sex discrimination, actionable under Title VII.