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Debate Continues on Whether Title VII Prohibits Discrimination Based on Sexual Orientation

The federal courts continue to wrestle with whether sexual orientation is protected by Title VII – the law that prohibits discrimination based on sex. Although most circuit courts of appeal (including the 10th Circuit that covers Kansas) hold that Title VII does not cover sexual orientation, recent court decisions have brought the debate to the forefront.

We told you in a post last August that the 7th Circuit Court of Appeals had rejected the EEOC’s position that discrimination based on sexual orientation violates Title VII.  That Court, however, later vacated the earlier decision, and granted a rehearing en banc.  Then, on April 4, 2017, the Court reversed course and ruled that discrimination based on sexual orientation is indeed a form of unlawful sex discrimination. 
In late March, the 2nd Circuit Court of Appeals reached the opposite result and ruled that under its existing precedent, Title VII does not prohibit discrimination based on sexual orientation.  In a separate opinion, two of the three judges urged the entire Court to reexamine its earlier precedents in light of the “evolving legal landscape.”   
And in early March, the 11th Circuit Court of Appeals held that discrimination based on sexual orientation was not sex discrimination.  A dissenting judge concluded, however, that “it [was] time that the court recognized that Title VII prohibits discrimination based on an employee’s sexual orientation.”  

These conflicting decisions are not binding on other federal circuits.  But they signal that the Supreme Court may be called on in the near future to settle the debate. 


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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