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Title VII Does Not Cover Sexual Orientation Discrimination . . . Or Does It?

By Katherine I. Tracy

Title VII, the federal law prohibiting discrimination based on an employee’s race, religion, gender, national origin, etc., does not expressly state that it prohibits discrimination based on an employee’s sexual orientation. And, federal courts considering the statute have not held that Title VII did not prohibit discrimination based on sexual orientation. That is, until April 4, 2017, when the Seventh Circuit Court of Appeals issued its landmark ruling in Hively v. Ivy Tech Community College of Indiana.

In an 8-3 decision, the Seventh Circuit became the first federal court of appeals to hold “that discrimination on the basis of sexual orientation is a form of sex discrimination” under Title VII. The Court’s decision in Hively is in stark contrast to other federal courts of appeals’ decisions that have not recognized discrimination on the basis of sexual orientation as a form of sex discrimination.

In fact, in Zarda v. Altitude Express, a three-judge panel of the Second Circuit Court of Appeals recently rejected the request that it overturn the decision of another panel of the Second Circuit Court of Appeals, which held Title VII does not prohibit sexual orientation discrimination. Since the Second Circuit’s April 18, 2017 opinion, however, the entire Second Circuit will re-consider its prior opinion that Title VII does not prohibit sexual orientation discrimination. Is it possible that the Second Circuit Court of Appeals could become the second federal appeals court to recognize that Title VII prohibits sexual orientation discrimination? We will have to wait and see.

But, a split among the federal appellate courts on this issue may inevitably lead to the United States Supreme Court, which would be called upon to resolve the split. With a full Supreme Court now sitting as a result of the recent appointment of Neil Gorsuch, the United States Supreme Court is in a position to issue a definitive decision on the matter. We will just have to wait and see. If you have questions concerning sexual orientation discrimination, please contact us

 

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    Overland Park, KS 66211