In an en banc opinion which the dissent calls “momentous”, on April 4, 2017, the Seventh Circuit held “that a person who alleges discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” With this opinion, the 7th Circuit becomes the first in the nation to explicitly recognize sexual orientation as a protected classification under Title VII.
In the past, same sex sexual harassment claims have been cognizable under Title VII on the theory that it was the gender of the victim that motivated the harassment. The EEOC concluded that sexual orientation discrimination was actionable under Title VII more than two years ago in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015). Still, numerous other circuit courts and district courts have come to the opposite conclusion.
The Seventh Circuit concluded that Title VII coverage of sexual orientation as a protected classification is supported both by the standard analysis (comparing the Plaintiff to someone of the opposite gender with the exact same facts) as well as under an associational theory as was the case in the Supreme Court’s opinion in Loving v. Virginia, 388 U.S. 1 (1967). Judge Posner in concurrence adds a third basis for finding that Title VII protects against discrimination based on sexual orientation through a process he calls “judicial interpretive updating”. In a nutshell, Judge Posner notes that while perhaps the word “sex” did not include “sexual orientation” in 1964, it does today.
For more information or help with your sexual orientation discrimination claim, contact the employment attorneys at Maduff & Maduff today.