Thursday, November 5, 2015

District Court Agrees with EEOC: Title VII Prohibits Sexual Orientation Discrimination

Title VII makes it unlawful for employers to discriminate on the basis of sex, and other protected classes: race, religion, color, and national origin. However, Title VII does not prohibit sexual orientation discrimination - at least not expressly.

Earlier this year, the EEOC issued a decision concluding that sexual orientation discrimination is a form of sex discrimination and therefore Title VII forbids it. A few days ago, a district court agreed. In Isaacs v. Felder Servs., LLC, the Middle District of Alabama held:
Not official use.
Isaacs claims that he was discriminated against based on his sexual orientation. The court rejects the magistrate judge's conclusion that "[s]exual orientation discrimination is neither included in nor contemplated by Title VII" . . . . This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII . . . . However, this claim fails for the same reason Isaacs's other discrimination claims fail: He has offered no direct or circumstantial evidence to suggest that the decision of Felder Services to fire him was based on his sexual orientation.
I suspect we'll see more and more courts weighing in on this issue; and we'll probably see jurisdictional splits all over the place. I must note that this court could have avoided the issue altogether, but seemingly went out of its way to reach it.

Will the Supreme Court ultimately decide? Will Justice Kennedy, who has consistently ruled in favor of gay rights, side with the EEOC? Will Congress amend Title VII to expressly include sexual orientation? We'll see.