Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. Perhaps the hottest issue in employment discrimination law today is whether that ban on gender discrimination includes discrimination on the basis of sexual orientation. Three federal appellate courts have recently considered cases asserting that federal law already includes this prohibition regardless of Congress’ refusal to pass legislation that would explicitly add LGBT status to the list of protected classifications.

On March 10, a divided Eleventh Circuit Court of Appeals panel concluded that current federal employment discrimination law does not include protections against sexual orientation bias. In a 2-1 decision in Evans v. Ga. Regional Hosp., the court rejected claims from a lesbian security guard that her employer discriminated against her on the basis of her orientation. The decision reviewed the legislative history of Title VII as well as older decisions from appellate courts in deciding that Congress must amend the statute to include such prohibitions.

In this case, the plaintiff argued that sexual orientation cannot be separated from gender, and that discrimination on the basis of sexual orientation is inherently a form of sex discrimination. The dissenting judge noted that under the U.S. Supreme Court’s Price Waterhouse v. Hopkins decision, Title VII’s sex discrimination protections already include prohibitions against bias based on gender stereotypes. The Eleventh Circuit remanded the claim to the district court to allow the plaintiff to assert a gender stereotyping claim, but the dissenting judge argued that discrimination based on sexual orientation by definition involves gender stereotypes.

The full Eleventh Circuit may decide to review this decision. In addition, the Second Circuit and the full Seventh Circuit are currently considering similar cases contending that Title VII directly prohibits discrimination on the basis of sexual orientation. At some point, the Supreme Court will likely review this question and possibly issue a nationwide decision on this continuing contentious issue.