Sexual orientation is a protected class under Title VII, right? Maybe. The United States Supreme Court has ruled that same-sex harassment is sex discrimination under Title VII. The EEOC has taken the position that sexual orientation discrimination is the same as discrimination on the basis of sex under Title VII. The Federal Courts of Appeals and Federal District Courts have taken a mixed approach to the issue. The argument for disallowing sexual orientation claims under Title VII is that the language of the 42 U.S.C. §2000e-2 does not include sexual orientation. The argument for allowing sexual orientation claims under Title VII is that the claimant would not have been subjected to the discriminatory conduct but for the claimant’s sex. The older cases tend to rely upon the strict statutory language that does not include sexual orientation to disallow the claims, while the newer cases tend to allow the claims based on a broader reading of “because of such individual’s … sex…[.]”
This trend is evident in Muhammad v. Caterpillar, Inc. The plaintiff in Muhammad claimed that he was discriminated and retaliated against on the basis of his perceived sexual orientation. The Seventh Circuit affirmed the district court’s summary judgment in favor of the employer because the employer reasonably responded to the complaints of harassment, and no evidence suggested that the employer retaliated against the former employee because of the former employee’s complaints. In the Seventh Circuit’s initial opinion, the court included language echoing the historical analysis that Title VII did not include discrimination on the basis of sexual orientation, and the court affirmed the district court’s summary judgment in favor of the employer. The Seventh Circuit revised its initial opinion, and removed the references to Title VII not including discrimination on the basis of sexual orientation.
Twenty years ago the standard advice to an employer would have been that sexual orientation is not a protected class under Title VII. Given the more recent cases, it seems foreseeable that eventually the United States Supreme Court will settle the issue in favor of allowing sexual orientation discrimination claims under Title VII, or the statute will be amended to define discrimination on the basis of sex to include discrimination on the basis of sexual orientation.