January 13, 2017
The Civil Rights Act of 1964 is the landmark piece of federal legislation in the field of employment discrimination. The statute prohibits discrimination on the basis of race, color, sex, religion, and national origin. It does not specifically include “sexual orientation” among the types of discrimination it prohibits. Many attempts have been made over the years to add that language to the statute, but Congress has never done so.
Many state and local governments have chosen to outlaw employment discrimination on the basis of sexual orientation within their jurisdictions. But courts have consistently refused to interpret the federal civil rights statute as prohibiting discrimination against homosexuals.
But that may be changing. The Equal Employment Opportunity Commission – the federal agency charged with enforcing the federal laws against employment discrimination – recently began taking the position that the prohibition against “sex” discrimination at least in some circumstances includes discrimination on the basis of sexual orientation.
Now the United States Court of Appeals for the7th Circuit has agreed to consider the issue. If the Court agrees with the position taken by the EEOC, it would be the first time a federal court of appeals – the Court just below the Supreme Court – has adopted this view. If other courts of appeals follow, it could open the floodgates to a great deal of new employment litigation.