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Is change coming regarding sexual orientation discrimination?

In a prior post, we focused on the question of whether Title VII of the 1964 Civil Rights Act could be extended to include sexual orientation as a protected class. At that time we opined that the quick answer would be “no” given that there had been no legislative push to expand the existing protected classes. Also, we noted that federal courts would be hesitant to expand the reach of a law without Congress’ blessing.

It appears that the winds of change are blowing in the direction of expansion. Earlier this year, the U.S. Court of Appeals for the Seventh Circuit issued an en banc decision that Title VII does in fact prohibit sexual orientation discrimination. It reasoned that treating people differently because they prefer one sex over another is the “epitome of gender stereotyping” and that such destructive preferences are exactly what is prohibited under federal law. 

However, the Seventh Circuit’s decision is in direct contrast to a similar case before the U.S. Court of Appeals for the Eleventh Circuit. It ruled that Title VII does not apply in sexual orientation discrimination cases, and that prior Eleventh Circuit precedent prevented a different ruling. It was unclear whether the court took the Seventh Circuit’s opinion into account. Additionally, the U.S. Court of Appeals for the Second Circuit is currently preparing an en banc decision on a sexual orientation discrimination case after a three-judge panel rejected a plaintiff’s claim.

Ultimately, the differing rulings from appellate courts make the issue ripe for the U.S. Supreme Court to weigh in. It remains to be seen whether the issue will be taken up in the next session.

Nevertheless, if you feel you are being discriminated against because of your sexual preference, or preconceived notions of your preference, an experienced employment law attorney can advise you. 

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