In the case under appeal, the plaintiff, an adjunct professor, claimed that because she’s a lesbian her employer declined to either promote her to full-time employment or renew her part-time employment contract. She sought redress on the basis of the provision of Title VII that forbids an employer “to fail or refuse to hire[,] or to discharge[,] any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex … .”

On April 4, 2017, the full panel of the 7th Circuit Court of Appeals became the first federal appellate court to recognize a cause of action based upon sexual orientation under Title VII, reversing course on its prior precedent.  The 7th Circuit three-judge panel assigned to the appeal initially applied its prior precedent in affirming the District Court’s dismissal of plaintiff’s complaint.  However, the full panel, as noted by Judge Wood at the outset of the opinion, changed direction.  Judge Wood stated,

“{F}or many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."

Judge Wood noted that the question to be decided was what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. The court concluded this was a question of pure statutory interpretation and thus well within the judiciary’s competence.

The majority rejected the defendant’s reliance on the fact that Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so. The court noted that many of its sister circuits had also noted this fact. In its view, however, it was simply too difficult to draw a reliable inference from these legislative initiatives to rest its opinion on them. The court stated: “ {t}he goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination.”

The majority also rejected the dissent’s note that Congresses acting more than thirty years after the passage of Title VII made use of the term “sexual orientation” to prohibit discrimination or violence on that basis in statutes such as the Violence Against Women Act and the federal Hate Crimes Act. The majority stated that these facts got them no closer to answering the question at hand, for Congress may certainly choose to use both a belt and suspenders to achieve its objectives, and the fact that “sex” and “sexual orientation” discrimination may overlap in later statutes is of no help in determining whether sexual orientation discrimination is discrimination on the basis of sex for the purposes of Title VII.

The majority also noted that the Equal Employment Opportunity Commission (EEOC), in 2015, announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. The majority noted that it had no duty to accept the EEOC’s position. However, the court stated that the EEOC’s position may have caused some in Congress to think that legislation was needed to carve sexual orientation out of the statute, not to put it in. In the end, the majority had no idea what inference to draw from congressional inaction or later enactments, because in its opinion there was no way of knowing what explains each individual member’s votes, much less what explains the failure of the body as a whole to change this 1964 statute. The majority found that discrimination based upon sexual orientation is in fact sex discrimination under both the comparative and associational methods of analysis.

This opinion is, as Judge Sykes noted in the dissent, momentous as it is the first federal appellate court opinion finding that discrimination based upon sexual orientation is in fact sex discrimination. The opinion’s impact on Illinois’ practitioners is limited however as the Illinois Human Rights Act already expressly held that discrimination based upon sexual orientation is in fact sex discrimination. For those litigating this issue outside of the 7th Circuit, Judge Posner’s concurrence, joined by Judges Flaum and Ripple, provides argument to the contrary as of course does the 29 page dissent written by Judge Sykes and joined by Judges Bauer and Kanne.

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