Federal Circuit Court Protects Against Sexual Orientation Discrimination for the First Time

Never let it be said that persistence does not pay off.  Despite years of universally rejecting arguments that federal law protects employees and applicants from sexual orientation discrimination, the tide reversed course this week when the Seventh Circuit Court of Appeals found otherwise.  The result is that until Congress or the U.S. Supreme Court step in, employers in Illinois, Wisconsin, and Indiana, at least, may be at risk for discriminating, harassing and retaliating against employees and applicants because of their sexual orientation.

How did we get here?  We start with the Civil Rights Act of 1964 which “prohibits employment discrimination based on race, color, religion, sex and national origin.”  Decades later in 1989, the U.S. Supreme Court in Price Waterhouse v. Hopkins found that the Civil Rights Act prohibited discrimination based on sex.  Ten years thereafter the Supreme Court determined that discrimination could still occur between members of the same sex.  The EEOC has been arguing since 2012 that the Civil Rights Act of 1964’s prohibition against sex discrimination, particularly given the wider interpretation from the U.S. Supreme Court as to the definition of sex for discrimination purposes, extends to protect against sexual orientation discrimination.

Although the EEOC had been unsuccessful to date in its arguments, the Seventh Circuit’s agreement with the agency’s interpretation of the law is significant not only for employers in Illinois, Wisconsin and Indiana, but also for employers throughout the country because the court’s decision will provide precedent upon which other courts may rely to justify taking a similar stance.  Many courts throughout the country are likely to take similar positions and find sexual orientation to be protected by federal law unless the Supreme Court or Congress step in.

For many if not most employers in the U.S., the debate over sexual orientation discrimination is settled because they either have prohibited it as a matter of company policy, or states in which they employ workers already protect against this form of discrimination under state human rights laws.  In fact, Washington D.C. and 20 states, including California, New York, Minnesota, Colorado, Illinois, Iowa, and every New England state, already prohibit employers from discriminating against employees and applicants because of their sexual orientation.  For employers in those states, this action by the Seventh Circuit has little practical meaning.  For employers in states that do not expressly prohibit sexual orientation discrimination in the workplace, this decision could be the beginning of a change in interpreting the Civil Rights Act of 1964 that will offer further protections to employees and applicants.

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