A big change in the law may be near; this post is a significant addendum to a couple of earlier posts about Title VII and sexual orientation.

On August 8th I did a post and said that “Lately there’s been a whole lotta hand wringing and finger pointing in the federal courts over the issue of sexual orientation and Title VII.”

Why?

I noted that the EEOC had taken the position that “Title VII of the Civil Rights Act of 1964, [] protects employees from sex discrimination, including harassment based on gender identity and sexual orientation,” even though Title VII does not explicitly forbid discrimination based upon gender identity and sexual orientation.

The Argument In Favor Of Sexual Orientation Being Included in Title VII

“The EEOC’s argument is that gender identity and sexual orientation are derivative of and included within the definition of sex discrimination in the statute. However, the Courts have only recognized gender identity as being within Title VII – but not sexual orientation.”

Because the issue is so significant, I want to encourage readers to check out the post my partner Amy Epstein Gluck published on sexual orientation.

Courts have said that this is “illogical” (the federal court of appeals in Chicago which ruled on this) but those which have addressed the issue recently have bemoaned that they are unable to do anything about it because of the legal requirement to follow existing precedent, known as “stare decisis.”

The Original Appeals Court Panel Decision

Although the court of appeals in Chicago called for a “bold” new look at whether Title VII includes sexual orientation, and purportedly gave the issue a “bold” new look – it ultimately simply stood back wringing its hands and concluded that it was nonetheless forced to uphold the longstanding (unjust) precedent.

So I concluded — “The fingers on the wringing judicial hands are pointing at Congress, which is not likely to do anything about the issue, of course, and the Supreme Court, which, as politicized as it is, is clearly not going to do anything in the near future.”

But wait – is there another legal step, before the Supreme Court?

The Full Appeals Court Agrees To A Rehearing

In fact there is!

I wrote previously that, as reported by Corporate Counsel the EEOC, and “numerous other amici, from the American Civil Liberties Union, to members of U.S. Congress,” ask the appeals court to rehear the case “en banc” (i.e., to have the entire appeals court — all of the judges — rehear the case in which only the typical three-judge panel ruled).

They agreed to this rare rehearing, and the full appeals court in Chicago – that is, all of the judges on that court, not just the three-judge panel that issued the decision – decided to sit and re-hear oral argument on the appeal (most probably after reading this blog!). This is pretty rare (not reading the blog, but re-hearing an appeal en banc) – and usually signals that the full court may not be in agreement with the three-judge panel.

And by all accounts the oral argument went pretty well for the EEOC’s position.

As a reporter for Slate wrote, this case “marks LGBTQ advocates’ first opportunity to press the EEOC’s latest position in a federal circuit court. It’s a landmark case any way you slice it, but the molten tension in the courtroom on Wednesday is heightened by the looming possibility of Supreme Court review.”

The Oral Argument Last Week

Slate provides a fairly good re-cap of the oral argument conducted last week, and the fascinating exchanges between Court and counsel, and I recommend the article if you do not want to read or hear the full argument. One neat exchange took place when the prolific Judge Posner upbraided defendant’s counsel who harkened back to the beginnings of Title VII to suggest that the original intent was not to include sexual orientation in the definition of “sex.”

Judge Posner said to counsel that “’You seem to think that the meaning of a statute is frozen, or the meaning of a constitutional provision is frozen on the date of enactment. Is that your position?’ But [defendant’s counsel] can’t really respond to that one, either, because Posner supplies the answer: ‘Of course that’s false.’ He then notes that Congress passed Title VII in 1964. ‘That’s a long time ago in terms of how people thought about sex,’ Posner reminds [defendant’s counsel], ‘and in particular, how they thought about homosexuality. So you think we’re bound by what people thought in 1964?’”

Pretty powerful. (And what would Justice Scalia have said about an attack on the notion that a modern society is strictly bound by what the drafters of a law meant 10, 100 or 250 years ago? “Jiggery-pokery” would have been a likely response, if unintelligible).

The Slate reporter interviewed EEOC Commissioner Chai Feldblum who was apparently ecstatic after the argument: “Different judges discussed different theories, but they all led to one conclusion: Sexual orientation discrimination always involves gender. It is sex discrimination.”

Takeaway: For those waiting a long, long time to see sexual orientation discrimination forbidden by Title VII, your wait may soon be over. Maybe.