Barber, Banaszynski & Hiatt, PSC

ARE VICTIMS OF SEXUAL ORIENTATION DISCRIMINATION PROTECTED UNDER THE FEDERAL CIVIL RIGHTS ACT?
posted by Thomas A. Ebendorf
Tags: In the news 

In April, 2017, the United States Court of Appeals for the Seventh Circuit held that employment discrimination based on sexual orientation was a violation of the protection against sex discrimination found in Title VII of the United States Civil Rights Act of 1964. The case involved a lesbian who was discriminated against in her job because she dated a woman. The Court of Appeals reasoned that if she had been a man and dated a woman, there would have been no adverse job consequence, no discrimination. Therefore, it was a sex-based decision and by a vote of 8-3, the Court found the employer to have violated Title VII of the United States Civil Rights Act of 1964. The Court concluded that “It is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” This decision was consistent with the position of the United States Equal Employment Opportunity Commission (federal agency responsible for enforcing Title VII) and signaled an acceptance by the Court of this argument.

However, in July, 2017, the United States Department of Justice under Attorney General Jeff Sessions, has inserted itself into this issue, arguing that Title VII doesn’t offer protection against sexual orientation discrimination. They argued that the protection of Title VII applies only when “an employer has treated similarly situated employees of different sexes unequally.” Their position was presented in a case which began in 2010 involving a gay man terminated by his employer because of his sexual orientation. The final outcome of this case is yet to be determined. Now we have two federal agencies with opposing views on this issue.

Ultimately, this issue will likely be decided by the U.S. Supreme Court, but in the meantime, employers will remain uncertain as to their obligation to protect LGBT employees from sexual orientation discrimination in the workplace.