Federal Court of Appeals Rules that Civil Rights Law Protects LGBT Workers from Sexual Orientation Discrimination

Guest Column By:

By Matthew A. Green
Partner, Obermayer Rebmann Maxwell & Hippell LLP

Recently, the U.S. Court of Appeals for the Seventh Circuit made history by extending the protections of Title VII of the Civil Rights Act of 1964 to LGBT individuals in the workforce when it held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

 

The Seventh Circuit’s decision altered the longstanding pattern of dismissing sexual orientation claims under federal civil rights laws. The Seventh Circuit reasoned that Title VII has and should be interpreted to cover more than just “textbook” sex discrimination wherein an employer refuses to hire a woman because she is a woman, and vice versa. The majority cited to Supreme Court opinions that have expanded its understanding of discrimination “on the basis of sex” to include sexual harassment in the workplace, same-sex harassment, and discrimination based upon failure to conform to gender stereotypes—none of which are explicitly prohibited on the face of the statute.

 

As a result of the Hively decision, there is now a split among federal courts of appeal as to whether Title VII prohibits workplace discrimination based on sexual orientation, setting the stage for the Supreme Court to address the issue at some point in the future. In the meantime, employers should be aware of state and local anti-discrimination laws, such as the New Jersey Law Against Discrimination and the Philadelphia Fair Practices Ordinance, which provide specific protections against sexual orientation discrimination. Employers may also benefit from enacting and enforcing workplace policies prohibiting discrimination based on sexual orientation and gender identity, which serve both to protect employers from liability, and to foster a more inclusive workplace.  Employers who are unsure if their policies and procedures meet state, federal and local guidelines should seek the advice of experienced employment counsel.