Will Sexual Orientation Become A Protected Class Under Title VII?

Because the issue is so significant, I want to encourage readers to check out the post my partner Amy Epstein Gluck published the other day on sexual orientation.

It may happen that sexual orientation will become a protected class — perhaps the last piece of the puzzle that is gender/identity/orientation under Title VII.

Puzzle, Jigsaw, Jigsaw Puzzle

To be brief, because she was so comprehensive (and I wrote about it before), the federal appeals court in Chicago vacated an order of one of its three-judge panels which in July held that although Title VII prohibits discrimination based upon sex and upon gender identity, it does not prohibit discrimination based upon sexual orientation.

That is, the court effectively declared that July order null and void, and agreed to re-hear the case before all the judges of the court in November.   This is a rare occurrence for any federal appeals court so perhaps it will take the unprecedented step of holding that Title VII, indeed, prohibits discrimination based upon sexual orientation.   That is my prediction.

EEOC Commissioner Chai Feldblum earlier explained the position of the EEOC with regard to this latest attempt to get an appeals court to change precedent and include sexual orientation:

Our most simple common-sense rationale for our decision at the EEOC was that if a man had a picture of his wife on his desk and he wasn’t fired, and a woman had a picture of her wife on her desk and she was fired, there is nothing but the different sex of the employee that has been taken into account in that decision.”

Great example that demonstrates the absurdity of the law as it now stands.

P.S.  The federal court of appeals in New York is faced with the same issue:  which one will rule first?

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]