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Judge: Title VII Prohibits Discrimination Based on Sexual Orientation

 

Shar Bahmani

 
 

The battle over the correct interpretation of Title VII as applied to claims based on or related to sexual orientation is likely just beginning.

This article was published in the November 8, 2016, issue of the National Law Review. | See related article

Title VII of the Civil Rights Act of 1964 protects employees by prohibiting employment discrimination based on race, color, religion, sex and national origin. This much is clear. But does Title VII prohibit employment discrimination based on sexual orientation? The U.S. Equal Employment Opportunity Commission (EEOC) – the government agency charged with administering and enforcing Title VII - maintains that it does. And at least one federal judge now agrees.

Last Friday, the Honorable Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania issued a Memorandum Order denying an a defendant-employer’s motion to dismiss a case brought by the EEOC against it based on sexual orientation discrimination. The EEOC alleged in its complaint the employer violated Title VII by allowing a supervisor to harass a gay employee because of his sexual orientation. The EEOC further alleged that the harassment was so pervasive and continuous that it created a hostile work environment, eventually forcing the employee to quit. The employer responded by seeking dismissal on the grounds that sexual orientation is not a protected category under Title VII. Judge Bissoon disagreed, concluding that “discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex.’”

The Pennsylvania decision is a big first step for civil rights advocates seeking to protect against sexual orientation discrimination in the workplace. The decision itself expressly recognized a national trend towards protecting the LGBT community from workplace discrimination, explaining that “[i]ncremental changes have over time broadened the scope of Title VII’s protections of sex discrimination in the workplace.” Specifically, the “Supreme Court’s recent opinion [in Obergefell v. Hodges] legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation.”

However, the decision remains merely a first step. No federal appeals court to date has expressly recognized Title VII protects against sexual orientation discrimination. To the contrary, several Circuit Courts have expressly held that Title VII offers no such protection.

One such Circuit Court is the Seventh Circuit Court of Appeals. As recently as this past July, the Seventh Circuit dismissed a complaint brought by an employee alleging she had been blocked from full-time employment by her employer because of her sexual orientation. The three judge Seventh Circuit panel reasoned that the Court had repeatedly held that “harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.” The decision, however, may be overturned as the Seventh Circuit recently agreed to review the decision en banc (by all the judges of the court). The hearing before the full Court is scheduled for November 30, 2016.

The battle over the correct interpretation of Title VII as applied to claims based on or related to sexual orientation is likely just beginning. The EEOC is pursuing several sexual orientation discrimination-related claims across the United States. Information on these cases can be found here.

The Western District of Pennsylvania case is EEOC v. Scott Med. Health Ctr., P.C., 2016 BL 370377, (W.D. Pa., No. 16-225, Nov. 4, 2016). The Seventh Circuit case is Hively v. Ivy Tech Community College, South Bend, 2016 U.S. App. LEXIS 13746, 2016 WL 4039703 (7th Cir. Case No. 15-1720, 2016).