Title VII of the Civil Rights Act of 1964 protects employees by prohibiting employment discrimination based on race, color, religion, national origin, and sex.  This much is clear.  What is not clear is whether the prohibition on sex-based discrimination extends to sexual orientation-based discrimination?  The United States Equal Employment Opportunity Commission (“EEOC”) – the government agency charged with administering and enforcing Title VII – maintains that it does.  And at least one United States District Court Judge now agrees.

Last Friday, the Honorable Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania issued a Memorandum Order denying a defendant-employer’s motion to dismiss a case brought by the EEOC in which it alleged that the employer violated Title VII by allowing a supervisor to harass a gay employee because of his sexual orientation.  The EEOC further alleged that the harassment was so pervasive and continuous that it created a hostile work environment, eventually forcing the employee to quit.  The employer argued that the case should be dismissed because although sex is a protected category under Title VII, sexual orientation is not.  Judge Bissoon disagreed, concluding that “discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex.’”

The Pennsylvania decision is a big first step for civil rights advocates seeking to protect against sexual orientation discrimination in the workplace.  The decision itself expressly recognized a national trend towards protecting the LGBT community from workplace discrimination, explaining that “[i]ncremental changes have over time broadened the scope of Title VII’s protections of sex discrimination in the workplace.”  Specifically, the “Supreme Court’s recent opinion [in Obergefell v. Hodges] legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation.”

However big it may be, the decision remains merely a first step.  No federal appeals court to date has expressly recognized that Title VII protects against sexual orientation discrimination.  To the contrary, several appellate courts have expressly held that Title VII offers no such protection, including the Seventh Circuit Court of Appeals.  As recently as this past July, the Seventh Circuit dismissed a complaint brought by an employee alleging she had been blocked from full-time employment by her employer because of her sexual orientation.  A three judge Seventh Circuit panel reasoned that the Court had reiterated prior decisions that “harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.”  This decision, however, may not stand for long, as the Seventh Circuit recently agreed to review the decision en banc (by all the judges of the court).  The hearing before the full Court is scheduled for November 30, 2016.

The battle over the correct interpretation of Title VII as applied to claims based on or related to sexual orientation is likely just beginning.  The EEOC is pursuing several sexual orientation discrimination-related claims across the United States.  Information on these cases can be found here.

The Western District of Pennsylvania case is EEOC v. Scott Med. Health Ctr., P.C., 2016 BL 370377, (W.D. Pa., No. 16-225, Nov. 4, 2016).  The Seventh Circuit case is Hively v. Ivy Tech Community College, South Bend, 2016 U.S. App. LEXIS 13746, 2016 WL 4039703 (7th Cir. Case No. 15-1720, 2016).