Federal court finds Title VII forbids sexual orientation discrimination

Q&A with Kristin Simpsen

published in The Oklahoman | April 6, 2017

On April 4, 2017, the Seventh Circuit Court of Appeals, which covers the states of Illinois, Indiana and Wisconsin, ruled that “discrimination on the basis of sexual orientation is a form of sex discrimination.” The 8-3 decision marks the first time a federal appeals court has found that workplace discrimination based on one’s sexual orientation is prohibited under the Title VII of the Civil Rights Act of 1964. In a Q&A with The Oklahoman, McAfee & Taft labor and employment attorney Kristin Simpsen explained why the U.S. Supreme Court is likely to have the last word on the issue and what employers should do in the meantime.

Last month, two other federal courts of appeal – the Eleventh Circuit in the southeast and the Second Circuit in the northeast – reached the opposite conclusion, holding that Title VII did not cover sexual orientation discrimination, she said. Given the conflicting decisions and the fact that the Eleventh Circuit and Second Circuit rulings go against guidance issued by the Equal Employment Opportunity Commission in 2015, the issue is likely end up before the nation’s highest court at some point.

“In the interim, EEOC has taken the position that sexual orientation discrimination is prohibited under Title VII,” said Simpsen. “To minimize risks, employers should review employee handbooks and policies to ensure that their Equal Employment Opportunity policies prohibit discrimination and harassment on the basis of sexual orientation. Employers should conduct manager training about recognizing and preventing discrimination in the workplace.”