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Sometimes persistence and changes in society do pay off when it comes to the recognition of legal rights.  After decades of courts universally rejecting arguments that federal law protects employees and applicants from sexual orientation discrimination, in early 2017 the Seventh Circuit Court of Appeals found otherwise.  The result was that employers in Illinois, Wisconsin, and Indiana may be at risk for discriminating, harassing and retaliating against employees and applicants because of their sexual orientation.  Many states already have protections for applicants and employees based on their sexual orientation, but last year was the first time a federal Circuit Court found that federal law does as well. 

Now, less than a year later, the Second Circuit Court of Appeals has found the same.  The upshot is that employers in New York, Connecticut and Vermont should now consider sexual orientation to be a protected class no different than race, religion, gender and the several other characteristics of employees and applicants that are protected from discrimination, harassment and retaliation by federal law.  If there is a national reluctance among federal courts to expand Title VII to protect people based on their sexual orientation those dominoes seem to be falling. 


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 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 extends to protect against sexual orientation discrimination, particularly given the wider interpretation from the U.S. Supreme Court as to the definition of sex for discrimination purposes. 

Although the EEOC had been unsuccessful in its arguments, its position has now lodged victories in two of the most important federal circuit courts in the country. Employers with operations outside these circuits should prepare for a continued expansion of sexual orientation being recognized by courts under Title VII as many courts throughout the country are likely to take similar positions.


For many, if not most, employers in the U.S. the debate over sexual orientation discrimination is a settled issue 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. 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.  This recent action by the Second Circuit, and the Seventh Circuit before it, are indicators of a change in the legal landscape that, unless stopped by Congress or the Supreme Court, will very likely result in many more courts embracing this more expansive understanding of Title VII of the Civil Rights Act.  There will undoubtedly be more to come.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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