ALERT: Seventh Circuit holds Title VII prohibits sexual orientation discrimination

Apr 5, 2017

Upending three decades of precedent, the Chicago-based U.S. Court of Appeals for the Seventh Circuit held on April 4 that Title VII of the Civil Rights Act of 1964 covers discrimination on the basis of sexual orientation. The landmark ruling is the first federal appellate court decision to extend Title VII’s ban on sex discrimination to sexual orientation.

Court’s Decision

The ruling by the full court of appeals overturns a three-judge panel’s decision last year that reaffirmed the long-held position that sexual orientation claims are not cognizable under Title VII. A majority of the full court held:

Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reason purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination.

The ruling comports with the view of the Equal Employment Opportunity Commission, which in 2015 indicated for the first time that sexual orientation discrimination is included in Title VII’s ban on sex discrimination.

While acknowledging that the U.S. Supreme Court has never expressly reached this question, the majority asserted that its conclusion is buttressed by two high court decisions interpreting Title VII: Price Waterhouse v. Hopkins, which held in 1989 that the practice of gender stereotyping falls within the statutory ban on sex discrimination; and Oncale v. Sundowner Offshore Services, Inc., which in 1998 held that Title VII prohibits sexual harassment inflicted by a male on another male. Extrapolating from these decisions, the majority concluded:

The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

In a robust dissent, three judges took the majority to task for failing to “interpret the statutory language as a reasonable person would have understood it at the time of enactment” in 1964. The court’s majority, claimed the dissent, “smuggle[d] in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents.” The dissenting judges said the court is “not authorized to infuse the [statutory] text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.”

Bottom Line

Illinois employers covered by the Illinois Human Rights Act are already prohibited from discriminating on the basis of sexual orientation, which the state law defines to include “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.” In light of yesterday’s Seventh Circuit ruling (which covers Illinois, Indiana, and Wisconsin), sexual orientation also will be a protected category under Title VII, the bedrock federal nondiscrimination law. Because the Seventh Circuit’s decision puts it at odds with other federal courts of appeals, the U.S. Supreme Court may eventually need to weigh in on the issue.

Steve Brenneman HeadshotThis article was written by Steven L. Brenneman who is a partner at Fox Swibel Levin & Carroll LLP and an editor of the Illinois Employment Law Letter. He can be reached at sbrenneman@foxswibel.com.