In an opinion entered on April 4, 2017, the 7th Circuit U.S. Court of Appeals (Illinois, Indiana & Wisconsin) ruled the term ‘sex’ contained in the list of protected classes under Title VII extends beyond just biological male or biological female—to include one’s sexuality or sexual orientation. This is the first federal Appeals Court to broaden the traditional and tortured interpretation of the ‘sex’ classification under Title VII to include sexual orientation.
In recent years, the Title VII protections for ‘sex’ have been interpreted to include same-sex harassment in the workplace and discrimination based on a person’s failure to conform to a certain set of gender stereotypes. With these extended interpretations in mind, the Court took a common-sense approach finding that a person who alleges that they experienced employment discrimination on the basis of their sexual orientation has put forth a case of sex discrimination for Title VII purposes.
This decision comes on the heels of an 11th Circuit (Florida, Georgia & Alabama) ruling that it could not recognize sexual orientation discrimination claims under Title VII. This remains binding precedent in the 11th Circuit for the time being. However, even the recent 11th Circuit opinion, which is now inconsistent with the 7th Circuit’s, confirmed that an adverse employment action based upon a failure to conform in behavior and/or appearance to traditional gender stereotypes is actionable.
The protected classes delineated under Title VII continue to include: race, color, religion, sex or national origin. In 2015, the Equal Employment Opportunity Commission (EEOC) announced its position that the prohibition against sex discrimination encompassed discrimination on the basis of sexual orientation and the agency does accept charges of discrimination on this basis. The EEOC’s interpretation, along with presumably more opinions paralleling the 7th Circuit’s view, may expand the interpretation of other employment laws, including the Equal Pay Act.
Employers are encouraged to be sensitive to the shifting “view” of the federal Courts in the Title VII context in making employment decisions.
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