News"You Can't Take the Sex Out of Sexual Orientation": A NY Appeals Court Holds that Sexual Orientation Is A Protected Class Under Title VII

 
In 2017, the Justice Department, headed by the Trump administration, argued that Title VII of the Civil Rights Act did not explicitly cover sexual orientation discrimination in the workplace.  This unexpected memo put the Justice Department at odds with another federal enforcement agency, the Equal Employment Opportunity Commission.
In a case that could have wide-ranging national significance for LGBTQ rights, a New York federal appeals court recently held that Title VII protects claims of discrimination based on sexual orientation, reaffirming the position taken by the EEOC and the Seventh Circuit, where Illinois sits.
Title VII is a federal law that bans employment discrimination based on one’s sex, race, color, national origin, and religion.  The issue in these cases is whether discrimination based on “sex” can be read to include discrimination based on one’s sexual orientation (since sexual orientation is not explicitly included within the language of Title VII).
The Second Circuit court found that sexual orientation discrimination is a subset of discrimination based on one’s sex because sexual orientation is defined by one’s sex in relation to the sex of those whom one is attracted.  Employees in these two circuits (Second and Seventh) can use existing civil rights law to sue for discrimination based on sexual orientation.
Last March, the Eleventh Circuit Court of Appeals in Atlanta ruled that Title VII’s reference to sex did not encompass discrimination based on sexual orientation.  The Supreme Court has recently denied a request to hear the appeal from the Atlanta case, but, with the Second Circuit’s recent ruling in line with the Seventh Circuit’s interpretation of Title VII, varying viewpoints may be enough to cause Supreme Court review.
In Illinois, discrimination based on one’s sexual orientation is prohibited under Title VII, and under the Illinois Human Rights Act.  The experienced attorneys at Tristan & Cervantes regularly advise clients regarding discrimination in the workplace and in implementing procedures to ensure effective management of employee complaints. Please contact our office if you or your organization has questions related to current trends in employment law and internal employment policies via email at info@tristanlegal.com or call us at 312.345.9200.