It happened. The first federal appellate court just ruled that Title VII prohibits discrimination because of an employee’s sexual orientation. Check out the opinion from the 7th Circuit, which covers Illinois, Indiana and Wisconsin, here. That paves the way for SCOTUS to take up the issue.
It’s a bigger deal than you may think.
Although sexual orientation isn’t yet a protected class in the 5th Circuit which covers Texas, sexual orientation Title VII cases here are nothing new. The 5th Circuit has long prohibited discrimination because of an employee’s failure to conform to stereotypes about his or her sex. It goes back to SCOTUS’s 1989 ruling in Price Waterhouse v. Hopkins. When an LGBT employee faces discrimination for his or her failure to conform, says the 5th Circuit, Title VII steps in then.
Texas employers typically even include sexual orientation in their equal employment opportunity policies, training and efforts. It’s the safe bet – especially when sexual orientation is a real EEOC hot button. (And that’s not changing with the Trump Administration.) I’m 100% on board with it.
Here’s the thing. If sexual orientation becomes a protected class under Title VII, keep an eye on religious discrimination. That’ll be the new frontier.
Followers of some religions – like Christianity, Judaism and Islam – often believe that homosexuality is wrong. Title VII says that employers must reasonably accommodate an employee’s sincerely-held religious beliefs. Sometimes, that means an employee is free to discuss his or her religious beliefs. But what if an employee believes he must answer honestly, when asked in a group of his co-workers that includes a homosexual co-worker, that God says homosexuality is wrong? Wouldn’t the employee would be bad-mouthing homosexual co-workers because of their Title VII protected class?
So, whose rights trump whose? If SCOTUS sides with the 7th Circuit, we’ll find out.