In a stark repudiation of the Equal Employment Opportunity Commission (EEOC), the Seventh Circuit Court of Appeals ruled last Thursday that federal law does not prohibit the firing or disciplining of an employee due to his or her sexual orientation. As we discussed, last summer the EEOC ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation.
The Seventh Circuit upheld a lower court ruling last January that Title VII does not prohibit discrimination based on sexual orientation. The Seventh Circuit largely echoed the court’s ruling in that case, agreeing that the language of Title VII makes it clear that Congress did not intend to include sexual orientation as one of the protected categories against whom discrimination is illegal.
Despite this ruling, it still is probably not smart for employers to fire or discipline an employee based on that employee’s sexual orientation. Many states, including Illinois, have laws that make it illegal to fire or discipline an employee based on his or her sexual orientation (Illinois’s law also makes it illegal to discriminate against an employee based on his or her gender identity).
Additionally, the Seventh Circuit went to great lengths in its ruling to note that discrimination based on gender non-conformity or gender stereotyping is illegal under Title VII. As we have discussed, an employer cannot discriminate against an employee because that employee does not act or behave in a manner associated with normal behavior for that person’s gender. For example, the Supreme Court has held that it was illegal for a company to refuse to promote a woman because she did not dress femininely, wear makeup, swore, and was told that she needed “a course at charm school.”
Moreover, it is probably bad PR for a company to be known as one that treats employees differently based on their sexual orientation. The defendant in this case, Ivy Tech Community College, has repeatedly emphasized that it does not discriminate on the basis of sexual orientation.
This ruling might encourage Congress to pass the Equality Act (S. 1858, H.R. 3185), which would make it illegal for employers to discriminate on the basis of sexual orientation. Although, with the election only three months away, expecting Congress to get anything done might be wishful thinking.