Tag Archives: sexual orientation

Seventh Circuit Rules: Sexual Orientation Discrimination Illegal Under Title VII

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.

EEOC Files First Lawsuits for Sexual Orientation Discrimination Under Title VII

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Earlier this month, the Equal Employment Opportunity Commission (EEOC) filed its first two lawsuits against a Pennsylvania employer and a Maryland employer for sexual orientation discrimination. The EEOC’s actions are not too surprising, given its recent decision in July of 2015, in which it held that discrimination against employees based on sexual orientation was illegal sex discrimination under Title VII of the Civil Rights Act.

The EEOC’s decision is seen as controversial by some, as federal courts have historically found that sexual orientation is not a protected class under Title VII (unlike “sex” or gender, which is protected). However, over the years, some courts have offered limited protection to LGBT employees under Title VII—primarily by holding that it is illegal to discriminate against employees for not living up to gender stereotypes. For example, a federal circuit court held that a gay male employee who was harassed by coworkers for being too “effeminate” could proceed with a Title VII claim of sex discrimination. In light of these decisions, and the Supreme Court’s recent decision to legalize same-sex marriage, the EEOC might be hopeful that courts will similarly step in to protect LGBT employees from employment discrimination.

Federal courts are not bound by the EEOC’s interpretation of Title VII and will decide the issue independently. However, until the issue is decided by the courts, employers should be aware that the EEOC is processing charges of sexual orientation discrimination filed by employees (and in rare cases, filing suit against employers on behalf of employees).

About half of the states—including California, Illinois, and New York—already have laws that prohibit private employers from discriminating based on sexual orientation. However, a ruling that sexual orientation is a protected class under Title VII would mean that private employers in all states will be prohibited from discriminating against LGBT employees.