The Seventh Circuit court issued a landmark ruling that stated that sexual orientation falls under "race, color, religion, sex, or national origin" in Title VII of the 1964 Civil Rights Act. The Supreme Court has not yet ruled on this, so the ruling only technically applies to people within the states of Illinois, Indiana, and Wisconsin, but you should pay attention regardless of where you live.
JoLynn Markison a partner in at the international law firm Dorsey & Whitney in its Labor & Employment Group explained what this means.
This Seventh Circuit decision departs from recent panel decisions by the Second and Eleventh Circuits, which concluded that Title VII does not protect employees on the basis of sexual orientation. Rehearings en banc of the Second and Eleventh Circuit decisions are still possible, which would result in all of the judges of those Circuits reviewing this issue. Given the split between Circuits, we may see the Supreme Court taking up this issue in the near future.
Employers outside the Seventh Circuit would do well to heed the Hively decision, and should consider updating their policies to exclude discrimination on the basis of sexual orientation. The Seventh Circuit acknowledged a decade-long trend of Supreme Court decisions protecting the rights of LGBT citizens.
The Supreme Court or Congress could take up the case as well, which would result in a uniform law across the country, but as to what a court ruling would be is up in the air. In the dissent, Judge Diane Sykes, wrote:
It's understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act," she wrote. "But we're not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation.
If the Supreme Court ultimately agrees with Judge Sykes, it would be surprising if Congress didn't legislatively amend the Civil Rights Act to expressly include sexual orientation.
So, what does this mean for your business? For most companies, nothing. If you have federal contracts, Attorney Robin E. Shea , a partner at Constangy, Brooks, Smith & Prophete reminds us
In any event, federal contractors are already required to prohibit discrimination or harassment based on sexual orientation or gender identity, many state laws and local ordinances prohibit such discrimination or harassment, and even in jurisdictions that have no such legislation in place, we recommend that employers prohibit such discrimination or harassment as a matter of company policy. We also recommend that it be included in companies' regular EEO and harassment training.
In other words, even if you're not living in the seventh circuit you have good reason to be operating as if sexual orientation was covered under Title VII. Shea also predicts that if this particular case ends up before the Supreme Court, it would be a 5-4 split in favor of affirming the seventh circuit ruling.
You probably already have non-discrimination policies in your business, but you should double-check them to make sure they are either in compliance with this court ruling (if you live in an affected state) or in compliance with the values you want your company to have, which will most likely be in compliance with this ruling. Regardless, it probably won't be long before either Congress or the Supreme Court will take up this issue and come down on the side of adding sexual orientation to Title VII.