In the last 9 months, I have twice posted on efforts by the Equal Employment Opportunity Commission (EEOC) and a number of private litigants to have federal courts construe federal statutory protections against certain forms of workplace discrimination to include discrimination on the basis of sexual orientation. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate against employees on account of “race, color, religion, sex, or national origin. . ..” During the last 40 years, a number of federal courts, including federal appellate courts, regularly rejected efforts to interpret the term “sex” as including sexual orientation and thereby refused to extend anti-discrimination protections to LGBT employees. This was often done on a perfunctory basis and without much reflection or debate on the question.
In Our Judgment
In August 2016, I discussed a recent decision of the United States 7th Circuit Court of Appeals which held “that Title VII does not redress sexual orientation discrimination.” As I mentioned in that post, the 7th Circuit’s decision was the first federal appeals court opinion on that subject since the United States Supreme Court decision guaranteeing same sex marriage rights under the United States constitution. It is also the first decision of a federal appeals court on that subject since the United States Equal Employment Opportunity Commission (EEOC) announced its intention to file federal court lawsuits seeking extension of Title VII protection to claims of sexual orientation discrimination.