The full U.S. Court of Appeals for the Seventh Circuit ruled this past month that sexual orientation is prohibited sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964.

Previously, sexual orientation was not a protected class of sex discrimination under Title VII.  This decision flies in the face of decisions by several other circuit courts which have ruled that sexual orientation is not a protected class. Ultimately, the U.S. Supreme Court may have to decide this issue during an upcoming session.

What is Title VII?

Title VII prohibits discrimination on the basis of race, color, religion, national origin, and sex. Up until this decision, “sex” did not include sexual orientation. The 7^th  Circuit is the federal court jurisdiction encompassing the states of Wisconsin, Illinois and Indiana.

Last year, a panel of the 7^th Circuit had found that Title VII did not prohibit sexual orientation discrimination. Subsequently that decision was vacated to allow the full 7^th Circuit Court to rehear the case. This 7^th Circuit decision is the first decision by a U.S. Court of Appeals that holds that Title VII does cover sexual orientation discrimination. This finding goes not only against the 7^th Circuit’s prior ruling, but also against opinions from nearly all the other Circuits.  Both the 2^nd a nd 11^th Circuits ruled exactly the opposite of the 7^th Circuit in the past month. This is why the U.S. Supreme Court may have to become the final decision maker. 

Key Takeaways

• If you conduct business in the 7^th Circuit, you could now be liable for sexual orientation discrimination under Title VII. The EEOC won’t be of any use to employers either.

• In Wisconsin, it should be business as usual with a tighter grip on sexual orientation issues. Many employers do not realize that sexual orientation is already protected under the Wisconsin Fair Employment Act.  Admittedly, it is not an often litigated issue in Wisconsin and the state definition is different from the 7^th Circuit’s but employers must be cognizant of this law.

• This is yet another open forum for plaintiff’s attorneys- just one more thing employers have to worry about getting sued over in federal court.

• All employees, male or female, regardless of sexual orientation, should be treated equally in the workplace. 

Stay tuned….there will be further legal develops regarding sexual orientation.