On April 4, the Seventh Circuit Court of Appeals ruled 8-3 that the 1964 Civil Rights Act protects members of the LGBTQ community from workplace discrimination. This alters precedent on the interpretation of Title VII of the Civil Rights Act, which is written:

It shall be an unlawful employment practice for an employer –


(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or


(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

The court argued that while Title VII does not explicitly say that sexual orientation is protected from workplace discrimination, it falls under the same category as "sex." Here is the opening to Chief Judge Diane Wood's majority opinion:

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin…” 42 U.S.C. § 2000e-2(a). 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. 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. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.

Last month, the Eleventh Circuit Court of Appeals ruled the opposite way, claiming that no one can claim relief under Title VII for possible workplace discrimination based on sexual orientation. Judge William H. Pryor, Jr. wrote the following concurrence:

The majority opinion correctly holds that a claim of discrimination for failure to conform to a gender stereotype is not “just another way to claim discrimination based on sexual orientation.” Like any other woman, Evans can state a claim that she experienced, for example, discrimination for wearing a “male haircut” if she includes enough factual allegations. But just as a woman cannot recover under Title VII when she is fired because of her heterosexuality, neither can a gay woman sue for discrimination based on her sexual orientation. Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who allege discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation.

Due to this clash between different circuit courts, the question of Title VII application to sexual orientation will likely reach the Supreme Court of the United States. While Title VII does not explicitly state that sexual orientation is a protected class, several states have expanded their anti-discrimination laws beyond the 1964 Civil Rights Act.

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