As we have discussed here and here at Currents, one of the hotly contested employment litigation issues of our decade is whether Title VII’s prohibition on discrimination “because of sex” prohibits discrimination on the basis of sexual orientation. Sex discrimination was an afterthought when Title VII was passed in 1964, added late in the Congressional process (reportedly added by opponents who thought it would cause Title VII to fail), and it is unquestioned that Congress was not thinking about sexual orientation at the time. Since that time, small judicial steps have set the table for the current debate that has been hot and heavy in 2017:
- The federal Court of Appeals for the 7th Circuit (Illinois, Indiana, Wisconsin) became the highest court to hold that Title VII does prohibit discrimination on the basis of sexual orientation.
- We wait to hear whether the U.S. Supreme Court will review Evans v. Georgia Regional Hospital, a case reaching the opposite conclusion in the 11th Circuit (Alabama, Florida, Georgia).
- The 2nd Circuit (Connecticut, New York, Vermont) has heard argument on and will decide the issue in the Zarda v. Altitude Express