February 22, 2017 Articles

“Sex” Discrimination under Title VII: An Ever-Changing World

By Sidney O. Minter

In the wake of Obergefell, we know that same sex marriage is legal across the nation. However, we still are not clear about whether a person's sexual orientation is protected under Title VII's "sex" provision.

What is considered sex discrimination under Title VII? That question has given rise to a number of claims and lawsuits across the country. Federal district courts have struggled with determining whether claims based on a person's sexual orientation are actionable as sex discrimination under Title VII. Currently, in both the Court of Appeals for the Seventh Circuit (hearing cases from Illinois, Indiana, and Wisconsin) and the Court of Appeals for the Eleventh Circuit (hearing cases from Alabama, Florida, and Georgia), these courts are considering the merits of two potential landmark cases. At the core, these courts are deciding whether to follow long-established precedent, which would preclude an employee's claim of discrimination based on sexual orientation—or, in the alternative, to move away from precedent, which would broaden the scope of Title VII's sex discrimination protection. Only time will tell what will happen.

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