A federal appeals court has ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sexual orientation. This is the first time a federal appeals court has reached such a conclusion.
Title VII of the Civil Rights Act of 1964 forbids workplace discrimination on the basis of, among other things, “sex,” but it does not explicitly mention “sexual orientation,” and the United States Supreme Court has never ruled on the issue.
Yesterday, in an 8-3 decision, the Seventh Circuit Court of Appeals held that "it would require considerable calisthenics to remove the 'sex' from 'sexual orientation.'" Writing for the majority, Chief Judge Diane Wood said the statute’s prohibition on “sex” discrimination also applies to “sexual orientation.” “For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation,” Chief Judge Wood wrote. “The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”
Judge Richard Posner is one of the most respected appellate judges in the country. In his concurring opinion, he noted his belief that adhering to outdated meanings and bygone cultural standards makes no sense. "It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII, [and legislators] shouldn't be blamed for that failure of foresight.” He further stated "[w]e understand the words of Title VII differently not because we're smarter than the statute's framers and ratifiers but because we live in a different era, a different culture."
The dissent was written by Judge Diane Sykes. She wrote that the majority of the Court was stretching the meaning of the law's text too far. "We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions." She also said that "[i]t's understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we're not authorized to amend Title VII by interpretation." Judge Sykes was one of Trump’s potential Supreme Court nominees, and appears to share a legislative interpretation philosophy with current nominee Judge Neil Gorsuch.
This case conflicts with the opinion of the Eleventh Circuit Court of Appeals. In light of this conflict, and considering the sharp partisan divide in Congress, this issue is likely headed to the United States Supreme Court. The Equal Employment Opportunity Commission and a number of states have already adopted the reasoning of the Seventh Circuit to push for workplace protections for LGBT people.
This is a developing and significant issue for employers and the law varies from state to state, jurisdiction to jurisdiction. Employers should contact their Hahn Loeser Labor & Employment Attorneys with their questions and concerns.