On Tuesday, April 4, 2017, the Seventh Circuit Court of Appeals–which covers Illinois, Indiana, and Wisconsin–held that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. Hively v. Ivy Tech Community College, Case No. 15-1720. The Hively ruling is significant because, to date, no other federal court of appeals has extended Title VII to discrimination on the basis of sexual orientation. Indeed, last week, a three-judge panel of the Second Circuit Court of Appeals concluded that it was bound by its prior precedent, holding that a gay, HIV-positive employee can’t pursue a claim of sexual-orientation discrimination under Title VII. Christiansen v. Omnicorp Grp., Inc., Case No. 16-748. But Christiansen also evidenced the turning tide on this issue, with two judges writing a separate concurring opinion stating that they would vote to overturn the court’s prior precedent if given the opportunity.

The EEOC has already staked out its position, “interpret[ing] and enforc[ing] Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.” Moreover, in its current Strategic Enforcement Plan, the Commission identifies “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a “top enforcement priority.”

From a practical perspective, this area of the law is a morass, and courts will be wrestling with gender-identity and sexual-orientation issues for years to come. But claims are on the rise, and courts are moving toward extending protection to sexual orientation. As a result, employers would be wise to address these issues proactively . . . so they don’t turn into lawsuits. This means analyzing current policies and practices to ensure they protect against sexual-orientation discrimination and gender stereotyping, and educating managers on these policies.

*Photo Credit: torbakhopper via Foter.com / CC BY-ND

The information contained on this blog is not legal advice, nor does this blog create an attorney-client relationship. Klein Bussell attorneys do not blog about pending matters handled on behalf of our clients and will never disclose client confidences.

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