Earlier this week, the U.S. Court of Appeals for the Seventh Circuit became the highest court in the country to rule that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964. While Title VII does not explicitly include sexual orientation as a protected class, the court held that discriminating on the basis of sexual preference is a form of gender stereotyping that qualifies as illegal “sex” (or gender-based) discrimination.
Title VII has long prohibited employers with 15 or more employees from discriminating on the basis of certain characteristics, such as sex. Over the years, some courts have expanded the definition of what qualifies as sex discrimination. For example, the Supreme Court has held that same-sex harassment is illegal (a man harassing another man, or a woman harassing another woman). And some federal circuit and district courts have held that discrimination based on gender stereotypes—such as a woman not being feminine enough or a man being too effeminate—qualifies as illegal sex discrimination.
Based on these legal precedents, the Equal Employment Opportunity Commission (EEOC) has started to pursue claims against employers for discriminating against gay and lesbian employees. However, the EEOC’s interpretation is not authoritative, and not all courts agree that sexual orientation discrimination is prohibited by Title VII.
The U.S. Court of Appeals for the Seventh Circuit recently sided with the EEOC, holding that sexual orientation discrimination is a form of illegal sex discrimination until Title VII. This decision is contrary to the recent holdings of the Eleventh and Second Circuits, which decided that sexual orientation discrimination is not illegal under Title VII. As a result, there is now a split of authority among federal appeals courts—which could mean that the issue will make its way up to the Supreme Court.
Several states and cities already expressly prohibit sexual orientation discrimination. To learn more, see our state articles on employment discrimination.