Seventh Circuit Appellate Court Rules that Workplaces Cannot Discriminate Based on Sexual Orientation Under Title VII. Does This Impact Your Workplace?
By David B. Walston, Partner
On Tuesday, April 4, the Seventh Circuit Court of Appeals in Chicago ruled 8-3 that workplace discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964.
In a past blog post, we’ve discussed the U.S. Department of Labor’s efforts under the Obama presidential administration to have “gender identity” declared protected from discrimination as gender discrimination. Despite all the headlines, it had long been the law that transgender employees were protected against discrimination under federal law under the theory of “gender stereotyping” – discrimination against an employee because he or she exhibited the characteristics ordinarily associated with the opposite sex.
While transgender rights to restrooms grabbed the headlines, the U.S. Department of Labor was also advancing its argument that sexual orientation was protected under the gender stereotyping theory. This argument was not new and had been presented repeatedly by employees since the recognition of the gender stereotyping theory. Courts recognized discrimination claims based on the exhibition of stereotypical gender masculine or feminine traits, but rejected claims against employers for discriminating against employers based on sexual orientation alone. In fact, during the Department of Labor’s recent push, several federal appellate courts, including the Eleventh Circuit (which covers Alabama, Georgia and Florida), again this year rejected pure sexual orientation claims, although with great hesitation.
With the Seventh Circuit’s recent ruling that Title VII – which prohibits gender discrimination – bars discrimination against an employee based on his or her sexual orientation, this trend has now been broken. Attorneys for employers and employees alike have been waiting for this question to make it to the U.S. Supreme Court for an ultimate decision. The Seventh Circuit’s decision has now given the argument more traction.
The question now is whether the Seventh Circuit’s decision has any substantial impact on employers. Legally, maybe. Practically, no.
- Legally: Unless you have employees in Illinois, Indiana or Wisconsin, you are not bound by the Seventh Circuit’s decision. The Eleventh Circuit – Alabama, Georgia and Florida – rejected the argument just last month. All other federal appellate courts have as well.
- Practically: Ever since gender stereotyping was recognized as a form of unlawful gender discrimination, most lawsuits asserting a claim of sexual orientation discrimination included a claim or allegations of unlawful gender stereotyping. It is a rare occurrence when a lawsuit includes only a claim for sexual orientation discrimination.
More importantly, it has always been our recommendation that employers NOT consider an employee’s sexual orientation or mannerisms in making employment-related decisions. Why invite a lawsuit on a hot, high profile topic? The Seventh Circuit’s decision does not change our position on this issue.