Earlier this week, the U.S. Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that workplace discrimination on the basis of sexual orientation is unlawful under Title VII of the Civil Rights Act of 1964 (“Title VII”). In its en banc decision, the court rejected any distinction between sexual orientation discrimination, which courts have generally declined to recognize under Title VII, and sex discrimination based on a gender-stereotyping theory, which has been successful for some LGBT employees. The court reasoned that discrimination based on sexual orientation is rooted in stereotypes about how men and women should behave with respect to sexual matters and, therefore, is the same as discrimination on the basis of sex.
As the Second and Eleventh Circuits have come down on the opposite side of this question in the past month, it appears that this issue is prime for review by the Supreme Court in the upcoming term. In light of the Seventh Circuit’s ruling, as well as recent rulings from the U.S. District Courts for the Eastern and Western Districts of Pennsylvania, employers would be wise to keep their eye on this area of law.