Several courts have been dealing with sexual orientation discrimination cases differently, and many were looking to the Supreme Court for a definitive answer.

But the Supreme Court just announced that it will not review a case that would have resolved the dispute over whether sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act.

While the Civil Rights Act prohibits discrimination based on gender, it says nothing about discrimination based on a person’s sexual orientation. But many plaintiffs have argued that sexual orientation is an extension of gender, therefore their employers violated the Civil Rights Act.

‘Not a protected class’

In Evans v. Georgia Regional Hospital, a security guard claimed  she was harassed for not conforming to traditional, female stereotypes, and subsequently fired because of her sexual orientation. The court initially dismissed her case, ruling that “homosexuality is not a protected class under Title VII.” Evans took her case to the Eleventh Circuit Court of Appeals, which agreed only partly with the lower court.

The Eleventh Circuit said that there is a difference between sex discrimination and sexual orientation discrimination, and didn’t allow Evans to group those two things together. The court ruled that her harassment claim due to not conforming to female gender norms was protected under the Civil Rights Act, but her claim of being fired due to her sexual orientation was not a protected class.

Ultimately, the Eleventh Circuit held that the Civil Rights Act does not prohibit sexual orientation discrimination.

Seventh Circuit disagrees

One month later, the Seventh Circuit became the first federal court of appeals to decide that sexual orientation discrimination does violate the Civil Rights Act, stating, “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation’ when applying Title VII.”

While the Eleventh Circuit sees gender norms and sexual orientation as separate issues, the Seventh Circuit believes they are interwoven. With the Supreme Court not clarifying the issue, many are looking for guidance — and it does appear that a pattern is emerging with more rulings.

Two more wins

In October, Lampley v. Missouri Commission on Human Rights marked another win for the plaintiff. A gay employee argued that his boss discriminated against him because “his behavior and appearance contradicted the stereotypes of maleness held by his employer.” The court found that this type of discrimination is covered under the Civil Rights Act, stating that “an employee has a cause for action for sex stereotyping regardless of his or her sexual orientation.”

Another case reinforced this ruling. In EEOC v. Scott Medical Center, an employee was awarded $55,500 after a supervisor’s frequent anti-gay comments forced him to quit. The company had ignored the worker’s reports of harassment, and the court found this caused the employee emotional distress, and ultimately, the loss of his job.

This is particularly notable because it’s the first LGBT discrimination case that the EEOC has won.

The Supreme Court declining to weigh in on the issue keeps things up in the air for now, but more rulings seem to be going in the employees’ favor.

Because of this trend, you may want to review your harassment and discrimination policies and consider making sexual orientation a protected class.