As we discussed, last week the 7th Circuit Court of Appeals issued a landmark ruling that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their sexual orientation. This was a departure from a number of rulings from other courts, and an adoption of a position many felt was a radical theory advanced by the EEOC. The 7th Circuit only covers Illinois, Indiana, and Wisconsin, so the decision only applies to employers in those states. However, it is very possible that other circuits will adopt the 7th Circuit’s position.
One of the reasons that the court held that Title VII prohibits sexual orientation discrimination, despite the fact that this language is not explicitly stated in the statute, is based on the theory that Title VII prohibits discrimination against employees on the basis of whom they associate with. Cases going back decades have held that an employer cannot, for example, refuse to hire a white employee because he or she has a black boyfriend or girlfriend. The 7th Circuit ruled that based on these cases, an employer cannot discriminate against an employee based on the gender of that employee’s significant other, as gender, like race, is a protected class under Title VII.
I found this discussion interesting because I imagine that many employers are not aware that it is illegal to discriminate against an employee because of the race of their significant other. Making comments about the race of an employee’s spouse could open an employer up to the same liability as making such comments about the employee himself. I am not aware of any cases extending this holding to an employee’s children, but I would have to imagine that a court would do so.
Employers may want to consider adding to their employee handbooks or other workplace policies statements that it is against employer policy to make comments about the race of an employee’s family members or significant others. In light of the Seventh Circuit’s ruling, they may also want to include comments about the sexual orientation of an employee’s family member or significant other to the list of prohibited workplace topics. Contact us for help updating your employee handbooks or other workplace policies.