“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.