Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may not discriminate against individuals based on their gender. Whether Title VII protections extend to sexual orientation and gender identity is less clear. Numerous federal courts have taken the position that sexual orientation and gender identity are not covered and it is up to the legislature to amend Title VII to explicitly provide protection from or redress for discrimination on these bases. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000).
The Equal Employment Opportunity Commission (EEOC) has been critical of the federal courts’ position. Beginning in 2013, the EEOC issued a number of decisions finding that gender identity and sexual orientation discrimination were forms of “sex discrimination.” In the recent past, the EEOC has been the driving force behind seeking protection for employees from discrimination based on their sexual orientation and gender identity. For this reason, many people expressed concern that the Department of Labor (DOL) took down the EEOC’s “Advancing LGBT Workplace Rights” document from their website the day President Donald Trump was elected. Activists worry that the EEOC will not continue to advance LGBTQ protections under the new administration. It is unlikely that Congress will advance any express protections based on gender identity or sexual orientation.
Reprieve may come from the courts. Since 2013, several federal district courts have denied motions to dismiss filed by employer defendants. Those courts have found it plausible that a plaintiff employee may assert claims based on sexual orientation and gender identity discrimination under Title VII.
Perhaps it will continue to fall to the courts and not the legislature to advance or clarify what LGBTQ protections exist. Notably, as reported by my colleague and fellow Marquette Law alum, Aaron McCann the full Seventh Circuit is reviewing Hively v. Ivy Tech Community College, No. 15‐1720. As he explains, “[t]he precedent-setting question, now before the full court on review, is whether Title VII’s employment discrimination protections extend to sexual orientation bias. If the Seventh Circuit recognizes a Title VII protection against sexual orientation discrimination, it will be the first federal Court of Appeals to do so.” A decision is forthcoming.