The U.S. Court of Appeals for the Seventh Circuit (in Chicago) ruled on April 4, 2017, that Title VII of the Civil Rights Act of 1964 – which prohibits workplace discrimination based on race, color, religion, sex or national origin – includes discrimination based upon an employee’s sexual orientation.
While the federal agency that enforces Title VII – the Equal Employment Opportunity Commission (EEOC) – has taken that position since 2015, this is the first time a federal appeals court has agreed. Previously, as the court noted, a Title VII sex discrimination claim would be based on conduct “against women because they are women and against men because they are men.”
Chief Judge Diane Wood, writing for the 8-3 majority of the full court, found that discriminating on the basis of sexual orientation is included in the definition of “sex” under the Title VII. The court analogized to cases finding that employers cannot discriminate based on gender stereotypes. For example, a fire department refusing to hire a woman because firefighting is traditionally viewed as a man’s job. Likewise, by refusing to hire an employee because of a same-sex relationship, the employer is favoring employees who have “traditional” male-female relationships. Either way, the distinction is based upon the employee’s sex:
“The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account. Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
In this case, the plaintiff, Kimberly Hively, alleged that she was refused full-time employment teaching at a community college and then was fired because she is a lesbian. As Judge Wood also pointed out, it would be absurd if the law were that an employee could legally have a same-sex marriage on Saturday and then legally be fired for it on Monday.
So what does this mean for employers? If you are an employer located in the Seventh Circuit (Illinois, Wisconsin and Indiana), employees may assert discrimination claims based upon sexual orientation in federal court, not just at the EEOC agency level. Statutory remedies may include compensatory and punitive damages, along with attorneys’ fees.
Is the next stop the U.S. Supreme Court? It certainly could be, particularly given that the Second and Eleventh Circuit Courts of Appeals have ruled the opposite way, setting up a “circuit split” that the Supreme Court (or Congress) would need to resolve.