This blog has covered the Equal Employment Opportunity Commission's decisions that the language of Title VII prohibits employment discrimination against an individual because of that individual's LGBT status. Late last month, the Seventh Circuit chimed weighed in, the first Circuit Court to do so following the Supreme Court's opinion in Obergefell v. Hodges.
In a long, thorough opinion, the three-judge panel ruled unanimously that Circuit precedent required the conclusion that Title VII does not extend to protect against discrimination because of sexual orientation. The opinion continued with a detailed analysis of the Commission's position before observing,
- Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....
(Slip Op., p. 42) (citations omitted). A petition for rehearing en banc is apparently under consideration. Similar cases are currently pending in the Second and Eleventh Circuits. If either of these circuits disagrees with the Seventh Circuit, a circuit split may put the issue before the Supreme Court.
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