Federal Court Prohibits Sexual Orientation Discrimination, But California is Ahead of the Game

sexual orientation discrimination
California already prohibits discrimination and harassment on the basis on sexual orientation.

This week, a federal court of appeals for the Seventh Circuit made headlines when it became the first appellate court in the nation to hold that discrimination on the basis of sexual orientation is prohibited under federal Title VII. The case is Hively v. Ivy Tech Community College.

Title VII of the Civil Rights Act prohibits discrimination in the private sector on the basis of “race, color, religion, sex and national origin,” but does not specifically outlaw discrimination based on sexual orientation. Until this week, no federal appeals court had held that sexual orientation is a protected class under Title VII. In fact, a number of federal courts previously have found that Title VII does not prohibit discrimination based on one’s sexual orientation or sexuality.

Now, in an 8-3 decision, the Seventh Circuit held that sexual orientation discrimination is a form of sexual stereotyping and sex discrimination prohibited by Title VII. The case received “en banc” review, meaning that it was considered by all of the judges sitting on the Seventh Circuit and not just the normal three-judge panel.

The case was brought by an openly lesbian woman who claimed that her contract as a part-time adjunct professor was not renewed and her applications for full-time positions were denied because of her sexual orientation. The plaintiff claimed that if she had been a man married to, living with or dating a woman, she would not have been denied promotions and would not have been fired.

The court found that sexual orientation discrimination is a form of sex discrimination against those resisting stereotypical roles: “[plaintiff] represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”

The Seventh Circuit considered the United States Supreme Court’s recent decisions on marriage equality. “The Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” said the court.

The Seventh Circuit also considered recent actions by the federal Equal Employment Opportunity Commission (EEOC). The EEOC is tasked with enforcing the nation’s anti-discrimination laws and has recently taken the position that sexual discrimination includes discrimination on the basis of sex. In one recent EEOC decision, the agency determined that sexual orientation discrimination is, by its very nature, discrimination because of sex (Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015)).

California Expressly Prohibits Sexual Orientation Discrimination

Although it is interesting seeing the progression towards nationwide application of sexual orientation protections, the news is less significant to California employers who have long had a duty to take reasonable steps to prevent sexual orientation discrimination and harassment from occurring in their workplaces.

Unlike federal law, California’s Fair Employment and Housing Act specifically prohibits discrimination and harassment on the basis of sexual orientation (Gov. Code sec. 12940, et seq.). This protection has been in place for over 20 years — since 1993.

Furthermore, gender identity and gender expression are also specifically protected under California law. As previously reported, the Department of Fair Employment and Housing recently released guidance for employers on transgender rights in the workplace and there also pending regulations relating to transgender rights.

Your prevention policies should specifically prohibit harassment and discrimination on the basis of sex, sexual orientation, gender, gender identity and gender expression.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber’s Employee Handbook Creator can help employers keep their policies updated to reflect legislative and regulatory changes, agency decisions, court cases or best practices.

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