By Jonathan Bryant, Equal Employment Opportunity Commission
When silence in a circuit court opinion replaces citation to old law called into question by subsequent Supreme Court cases, what should we make of it? In denying rehearing in Muhammad v. Caterpillar, the Court excised language withholding Title VII’s protections of employees because of their LGBT status. The stricken language finds support in decades-old precedent, but not in more recent developments.
In its original opinion, the Court wrote:
"The first problem is that the only complaint of 'sexual harassment' made by Muhammad is of statements regarding his sexual orientation, which is not prohibited conduct under Title VII. Accordingly, Muhammad cannot maintain a retaliation claim based on a complaint of conduct that is not covered under Title VII, and summary judgment was proper on that basis alone. See Hamner v. St. Vincent Hosp. and Health Care Center, Inc., 224 F.3d 701, 707–08 (7th Cir. 2000) (retaliation claim failed because the conduct the plaintiff opposed (harassment based on his sexual orientation) was not proscribed by Title VII); Magyar v. Saint Joseph Regional Medical Center, 544 F.3d 766, 771 (7th Cir. 2008)."
Hamner stated 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.” 224 F.3d at 704. That rule comes from its 1984 decision in Ulane v. Eastern Airlines, Inc., where the Court also held that Title VII does not protect transgender individuals. 742 F.3d 1081 (7th Cir. 1984).
With its order denying rehearing, the Court deleted its original statement that Title VII does not cover sexual orientation discrimination or related retaliation. This modification should not be overlooked, especially in the context of recent developments in the rights of LGBT individuals.
Next week, we’ll consider how that 1984 ruling holds up against more recent developments and consider whether those developments offer any clues into the refined Muhammad opinion.
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This post is authored by Jonathan Bryant, Trial Attorney for the U.S. Equal Employment Opportunity Commission in its Indianapolis District Office. The views expressed in this post are his own, not necessarily those of the Commission. You can email him at Jonathan.Bryant@eeoc.gov.