In a landmark decision released April 4, 2017, the Seventh Circuit Court of Appeals ruled that Title VII protection extends to sexual orientation. The Seventh Circuit has become the first appeals court to rule in such a manner, directly contradicting the recent decisions of the 11th and Second Circuits.
The circuit split created by this ruling may prompt the U.S. Supreme Court to grant certiorari to resolve the issue. For a complete summary of this issue’s legal landscape, see our related blog article.
The Seventh Circuit en banc panel used Supreme Court rulings over the past two decades to take a fresh look at whether Title VII prohibits discrimination on the basis of a person’s sexual orientation. Acknowledging other circuits’ decisions and years of decisions to the contrary, the court instead looked at Supreme Court decisions, not only in the employment discrimination realm but also in the broader area of sex discrimination.
The court revisited all decisions where sexuality was an issue, such as Romer v. Evans, 517 U.S. 620 (1996) (finding law forbidding state action designed to help homosexual persons violated the Equal Protection Clause); Lawrence v. Texas, 539 U.S. 558 (2003) (finding Texas statute criminalizing homosexual intimacy violated the Due Process Clause); and United States v. Windsor, 133 S.Ct. 2675 (2013) (finding same-sex couples have the right to marry). In the wake of these types of Supreme Court decisions, the panel found it hard to reconcile the unparalleled outcomes created by the current legal backdrop rejecting sexual orientation as a form of sex discrimination under Title VII. In light of these decisions, the court “took advantage of what the last half century has taught” in finding that sexual orientation discrimination is prohibited by Title VII.
Only time will tell if the Supreme Court or Congress will take action to resolve the circuit split on this issue. Until then, employers should check local and state laws for guidance. Several jurisdictions, such as the state of Illinois and the city of St. Louis, have already provided protection against sexual orientation discrimination.