Brian M. O'Neal

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7th Circuit Rules That Title VII Prohibits Sexual Orientation Discrimination

Title VII of the Civil Rights Act of 1964 prohibits discrimination against an individual based on his/her “race, color, religion, sex, or national origin.”  Unlike some state anti-discrimination statutes, including the Illinois Human Rights Act, that explicitly provide for “sexual orientation” protection in addition to “sex” protection, Title VII does not explicitly address sexual orientation.  Until recently, each federal appellate court that has addressed the issue of whether Title VII encompasses sexual orientation protection has ruled that Title VII does not provide any such protection.  However, on April 4, 2017, the U.S. Court of Appeals for the 7th Circuit became the first federal court of appeals to hold that the Title VII protections against discrimination extend to sexual orientation.

In an 8-3 decision, the 7th Circuit reversed the decision of the U.S. District for the Northern District of Indiana and concluded that discrimination on the basis of sexual orientation is a form of sex discrimination for Title VII purposes.  The case primarily focused on what it means to discriminate on the basis of “sex” in the context of Title VII’s anti-discrimination provisions.  The majority opinion drafted by Judge Diane Wood stated that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex . . ..”  The majority opinion further indicated that no legitimate line can be drawn between a gender stereotyping claim, which has previously been recognized by the U.S. Supreme Court as falling within Title VII’s sex discrimination prohibition, and a sexual orientation claim.  In 2015, as the majority opinion noted, the EEOC also changed its previous interpretation of Title VII and indicated that it now takes the position that Title VII’s sex discrimination prohibition does encompass sexual orientation discrimination.

The dissent drafted by Judge Diane Sykes asserted that the decision of the majority is not “faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted” and “[t]he result is a statutory amendment courtesy of unelected judges.”  Because there is a disagreement among the federal courts as to whether Title VII provides sexual orientation protection, it is possible that the U.S. Supreme Court will address this important issue in the fairly near future.  Regardless, the 7th Circuit decision provides just the latest reason why it is important for companies to take measures to ensure their employees understand that sexual orientation discrimination and harassment will not be tolerated and that any such discrimination or harassment should be immediately reported by the employee(s).  There are already many state and local anti-discrimination laws within the United States that prohibit discrimination based on sexual orientation.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including those relating to discrimination, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation or issue. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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