Background
Title VII prohibits discrimination “because of sex.” Historically, both the courts and the Equal Employment Opportunity Commission (EEOC) refused to recognize sexual orientation as a protected class under Title VII. However, in Baldwin v. Foxx (2015), the EEOC took the position that sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorable because of the employee’s sex.

Seventh Circuit Landmark Decision
On April 4, 2017, the 7th Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII. In a full panel en banc decision, the court opened the door for LGBT plaintiffs to use Title VII to seek relief for allegations of employment discrimination and retaliation (Hively v. Ivy Tech Community College). The 7th Circuit covers Illinois, Indiana, and Wisconsin.

The court concluded that discrimination on the basis of sexual orientation is a form of discrimination and that it would require considerable calisthenics to remove the “sex from “sexual orientation” when applying Title VII.

Recent Cases in the Eleventh and Second Circuits Rule that Title VII Does Not Cover LGBT Employees
Several cases analyzing whether sexual orientation is protected by Title VII of the Civil Rights Act of 1964 have recently been decided by other Circuit Courts. The Eleventh Circuit, in Evans v. Georgia Regional Hospital (March 10, 2017), and the Second Circuit, in Christiansen v. Omnicom Group, Inc. (March 27, 2017), have both held that they are bound by prior precedent that Title VII does not prohibit sexual orientation discrimination.

However, the dissenting opinion in Evans, and the concurring opinion in Christiansen, suggest that it should. These courts are bound by prior precedent holding that sexual orientation discrimination is not protected by Title VII until an en banc panel or the U.S. Supreme Court decides otherwise.

State Laws
There are other avenues whereby employers could still face liability for such claims. The first is through state law. Almost half of the states in the country have laws prohibiting sexual orientation discrimination in employment (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin), and some additional states protect state workers from such discrimination (Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Virginia).

Sex Stereotyping
Also, plaintiffs have successfully argued to various federal courts that Title VII sex discrimination covers claims where plaintiffs allege mistreatment based on gender non-conformity actions. This includes situations where employers are alleged to have discriminated against workers for failing to live up to stereotypical gender norms.

Federal Contractors
Federal contractors subject to EO 11246 should note that it remains in effect. On January 31, 2017, President Trump issued a press release assuring that his administration will continue to enforce Executive Order 13672, which augments EO 11246 to protect applicants and employees from anti-LGBT workplace discrimination while applying to work for or working for covered federal contractors. This includes providing equal bathroom access to applicants and employees based on gender identity.

Irrespective of federal, state and local protections, it remains good practice to provide internal policies and procedures prohibiting LGBT discrimination and providing a complaint and investigation procedure when such discrimination is alleged to have occurred.