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Appeals Court Rules Employers Can't Fire People Based on Sexual Orientation

A federal appellate court has concluded that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The landmark case in the United States Court of Appeals for the Seventh Circuit stated that it took into account developments at the Supreme Court over the last two decades when reaching its decision. This is a departure from other U.S. courts of appeals’ traditional stance that the prohibition against sex discrimination excluded discrimination on the basis of a person’s sexual orientation.  

The Court specified that it was not adding sexual orientation as a protected characteristic under Title VII, rather that sexual orientation cannot be separated from the already protected characteristic of sex. The Court explained that “any discomfort, disapproval or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently or dates or marries a same-sex partner is a reaction purely and simply based on sex.” In short, if a man is in a relationship with a woman and the employer accepts it, the employer must also accept when a woman is in a relationship with a woman (or vice versa) since the only difference is the sex of the employee. While this ruling is limited to those employers in the Seventh Circuit’s jurisdiction (Illinois, Indiana and Wisconsin), the ruling represents a growing trend of expanding sexual orientation based protections in the courts, and conflicts with a recent United States Court of Appeals for the Eleventh Circuit ruling, making the issue ripe for the Supreme Court.

Employers within the Seventh Circuit should update their sexual discrimination and harassment policies to reflect this new legal development. Employers outside of the jurisdiction may wish to consider updating their sexual harassment policies to reflect the trend in employer policies regarding sexual orientation demonstrated by this case, if they have not already done so.

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