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May 2nd, 2017
employment
SEXUAL ORIENTATION AND THE PROTECTIONS AFFORDED BY TITLE VII: RIPE FOR SUPREME COURT REVIEW

In early April, the United States Court of Appeals for the Seventh Circuit became the first Federal Circuit Court to hold that discrimination on the basis of sexual orientation is a form of sex discrimination and, therefore, prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).  The Seventh Circuit’s decision sides with the position taken by the EEOC, which has been pushing to extend Title VII’s protections to include sexual orientation.

The Seventh Circuit’s holding is in contrast to its prior jurisprudence, as well as the position taken by many other federal appellate courts.  As such, the question of whether Title VII extends to cover sexual orientation discrimination appears ripe for Supreme Court review. In the Eleventh Circuit, a panel of judges recently refused to recognize sexual orientation claims under Title VII, putting the Eleventh Circuit at odds with the new Seventh Circuit jurisprudence. 

The Seventh Circuit’s opinion is not without nuance, however.  Instead of making the jump that sexual orientation discrimination is prohibited by Title VII, despite the lack of inclusion of “sexual orientation” language in the statute, the Seventh Circuit found that sexual orientation discrimination falls under the umbrella of sex discrimination.  In reaching its decision, the Court touched on the progressive jurisprudence regarding sexual orientation coming from the Supreme Court the last one to two decades. 

Given the potential shift in national jurisprudence on this issue, employers should consider including a prohibition on sexual orientation discrimination within their handbooks and incorporating such a policy into its anti-harassment and anti-discrimination training.

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