“Who will be hurt if gays and lesbians have a little more job protection?” Judge Richard Posner of the Seventh Circuit Court of Appeals posed this question a few months ago during oral argument in a case involving a teacher who alleged she was fired because she is lesbian.  On Tuesday, the en banc Seventh Circuit answered Judge Posner’s rhetorical question in a landmark decision holding that Title VII protects employees from discrimination on the basis of their sexual orientation.  The court is the first court of appeals in the country to apply Title VII’s job protections to  employees on the basis of their sexual orientation, interpreting the definition of “sex” under Title VII to include “sexual orientation.”

To casual followers of the law, this decision may seem unremarkable after the Supreme Court ruled nearly two years ago that same-sex marriage enjoys constitutional protection.  (See our blog on the Obergefell decision here, and our blog on the decision’s impact on employee benefits here.)  But it is a watershed decision with ripple effects far beyond the three states within the Seventh Circuit.  Prior to this decision, every other federal appeals court to confront this issue has reached the opposite conclusion—that sexual orientation is beyond Title VII’s purview.  The Seventh Circuit’s decision illustrates how courts have evolved in reading this 1964 law, particularly in the face of the Supreme Court’s decision in Obergefell and changing societal norms.

Title VII does not expressly enumerate “sexual orientation” alongside its protections for race, sex, color, national origin, and religion.  For years, courts limited “sex” to mean that Title VII prohibited discrimination against a woman because she was female or a man because he was male.  That strict reading precluded employees from alleging they were discriminated against merely because they were gay or lesbian.  But 20 years ago, a pair of Supreme Court decisions changed the legal landscape by holding that discrimination based on sex stereotypes (e.g., discrimination against men because they were too “feminine” or against women because they were too “masculine”) was unlawful and that same-sex discrimination (such as a man harassing another man at the workplace) is “sex” discrimination and thus prohibited.

With that backdrop, the Seventh Circuit concluded that Title VII must necessarily also protect “sexual orientation.”  Because, as the Seventh Circuit stated, “homosexuality is nothing worse than failing to fulfill stereotypical gender roles.”

By protecting gay and lesbian employees from workplace discrimination, the Seventh Circuit aligns itself with the EEOC, which for years has taken the position that sexual orientation is protected by Title VII, and with several other federal district court decisions. Laws in many states and local jurisdictions also expressly prohibit sexual orientation discrimination, so employers in these jurisdictions (including Oregon, Washington and California) have long abided by these principles.  In addition, the federal government and federal contractors are prohibited from engaging in sexual orientation discrimination under Executive Order 13672, which President Trump has indicated will continue to be enforced.

It will remain to be seen where this debate goes, and whether the other federal courts of appeals will follow suit. But now with the circuit split, it is likely that either the Supreme Court or Congress (the former anticipated as the more likely venue) will ultimately weigh in as the final arbiter of whether gay and lesbian employees are expressly protected from sexual orientation discrimination under Title VII.  Employers with workplace policies that discriminate against gay and lesbian employees (such as those that provide benefits only to opposite-sex spouses of employees) may wish to reconsider these policies in light of this decision.   We will keep you updated on any developments.

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Photo of Ryan Kunkel Ryan Kunkel

Ryan Kunkel, an associate in Stoel Rives’ Labor & Employment group, helps employers resolve employment-related disputes in litigation and counsels clients to help prevent those disputes in the first place. His practice also includes helping management resolve complex labor disputes, including organizing…

Ryan Kunkel, an associate in Stoel Rives’ Labor & Employment group, helps employers resolve employment-related disputes in litigation and counsels clients to help prevent those disputes in the first place. His practice also includes helping management resolve complex labor disputes, including organizing drives, NLRB proceedings, and work stoppages.

Click here for Ryan Kunkel’s full bio.

Photo of Brenda Baumgart Brenda Baumgart

Brenda Baumgart is practice group leader for Stoel Rives’ Labor & Employment group and devotes her practice to assisting companies of all sizes navigate the complexities of employment and labor laws. She partners with clients to provide day-to-day advice and compliance counseling, assisting…

Brenda Baumgart is practice group leader for Stoel Rives’ Labor & Employment group and devotes her practice to assisting companies of all sizes navigate the complexities of employment and labor laws. She partners with clients to provide day-to-day advice and compliance counseling, assisting them with finding practical solutions while minimizing litigation risk. Her litigation and trial work includes defending employers in federal and state courts in all areas of employment law (including single plaintiff cases and class/collective actions), handling appeals exclusively on matters of labor and employment law before appellate courts, including the Oregon Court of Appeals, the Oregon Supreme Court, the Ninth Circuit, the Eighth Circuit, and the Fifth Circuit, and administrative proceedings before various governmental agencies. Brenda also has a strong traditional labor practice and represents clients in labor arbitrations and matters before the National Labor Relations Board (NLRB). She conducts internal workplace investigations for private and public sector clients.

Click here for Brenda Baumgart’s full bio.

Photo of Howard Bye-Torre Howard Bye-Torre

Howard Bye-Torre focuses his practice on assisting clients with employee benefit matters relating to cafeteria, health and other welfare plans. Howard advises clients on ERISA, federal health care reform (ACA), HIPAA, COBRA, HITECH, USERRA, Medicare Part D, Medicare Secondary Payer, wellness programs, same-sex…

Howard Bye-Torre focuses his practice on assisting clients with employee benefit matters relating to cafeteria, health and other welfare plans. Howard advises clients on ERISA, federal health care reform (ACA), HIPAA, COBRA, HITECH, USERRA, Medicare Part D, Medicare Secondary Payer, wellness programs, same-sex marriage and domestic partner issues, mental health parity law, the Americans with Disabilities Act, nondiscrimination rules, federal tax issues, and other state and federal law benefit topics. In addition to his work with ERISA plans, he has extensive experience with governmental and church plans.

Click here for Howard Bye-Torre’s full bio.

Photo of Ed Reeves Ed Reeves

Ed Reeves is a retired partner of the firm. Ed’s practice focused on counseling employers, educating management in all areas of labor and employment law and advising private colleges and universities on all aspects of education law. He also offered to serve as…

Ed Reeves is a retired partner of the firm. Ed’s practice focused on counseling employers, educating management in all areas of labor and employment law and advising private colleges and universities on all aspects of education law. He also offered to serve as a neutral mediator and arbitrator.