Dive Brief:

• Evergreen Kia has agreed to pay $100,000 to a former car salesman, who is gay and has Crohn’s disease, to settle claims that the man was subjected to “unwelcome and offensive contact” that became so intolerable that the worker was forced to quit.
• The U.S. Equal Opportunity Employment Commission (EEOC) alleged in a lawsuit that the dealership’s “owner often used homophobic slurs when talking to and about the salesperson, made offensive jokes about gays and made offensive comments about his disability” in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).
• The consent decree resolving the suit also requires that outside monitor investigate discrimination or harassment complaints. Evergreen also must post notices of the settlement, revise its anti-discrimination and recordkeeping policies, report complaints of sex or disability discrimination periodically to the EEOC and train its managers regarding their obligations under the law.

Dive Insight:

The EEOC is holding steady in its position on sexual orientation discrimination. Title VII prohibits discrimination based on sex but does not explicitly discuss sexual orientation discrimination. The EEOC has maintained that discrimination based on sexual orientation or gender identity is a form of sex stereotyping that can amount to sex discrimination — and it continues to enforce that position despite opposition from the Trump administration. But with two Republican commissioners waiting to be confirmed to the EEOC, it's unclear whether the agency will maintain this position much longer.

Federal courts meanwhile are split on whether Title VII protects workers from discrimination based on sexual orientation. The 2nd and 7th Circuits have ruled that federal law prohibits such actions, but the 11th Circuit is in the opposing camp. A split in the circuits normally invites the review of the nation’s top court, but the U.S. Supreme Court has so far refused to take up the question. It declined late last year to review the 11th Circuit’s ruling.

LGBTQ advocates have asked Congress to pass a federal law explicitly outlawing sexual orientation and gender identity discrimination but efforts so far have been unsuccessful. Employers should note, however, that some state and local governments provide those protections.

In the meantime, experts recommend that employers refrain from discriminating against workers based on sexual orientation or gender identity, regardless of jurisdiction.