Earlier this year, the Seventh Circuit Court of Appeals issued a landmark decision holding that employment discrimination on the basis of one’s sexual orientation is a form of gender discrimination prohibited by Title VII of the Civil Rights Act of 1964 as amended. The decision was considered earth shattering because it was the first time that any federal appellate court issued such a ruling. Previously, every Circuit, including the Seventh Circuit, had held that Title VII’s prohibition on sex/gender discrimination in employment did not encompass sexual orientation discrimination.
On July 26, 2017, President Trump’s Justice Department filed an Amicus Curiae (Friend of the Court) brief in a Second Circuit Court of Appeals case dealing with the same issue. The Justice Department argued that Title VII’s prohibition on gender/sex discrimination does not prohibit discrimination in employment on the basis of sexual orientation. The Justice Department’s position is directly in opposition to the Equal Employment Opportunity Commission which also filed an Amicus Curiae brief urging the Second Circuit to follow the Seventh Circuit’s recent decision.
The problem here is that Title VII does not expressly prohibit employment discrimination on the basis of one’s sexual orientation so employee rights attorneys have argued that it should be considered a form of sex/gender discrimination which is expressly prohibited by Title VII. While the issue will ultimately need to be decided by the United States Supreme Court, Congress has the power to make the argument moot by passing legislation explicitly prohibiting sexual orientation discrimination in the workplace.