Federal court criticizes lack of protection in discrimination case

Posted in Sexual Harassment on August 4, 2016

Many readers of our California sexual harassment blog know, of course, that federal protection against discrimination in the workplace extends to a number of so-called “protected” categories.

Those are ensconced in Title VII of the 1964 Civil Right Act, and include protections against discrimination and harassing treatment that target race, gender, national origin, religion and additional categories.

There is one glaring absence from that list, as prominently noted in a high-profile court case that concluded last week.

That is this: sexual orientation.

For whatever reason, federal law continues to be silent concerning protections against (https://www.indystar.com/story/money/2016/07/29/workplaces-can-discriminate-based-sexual-orientation-federal-judges-rule/87707050/) workplace discrimination grounded in sexual orientation, notwithstanding the lengthy list of protected categories extant under Title VII. Many states, including California, do extend protection to workers who are discriminated against on that ground.

The 7th U.S. Circuit Court of Appeals was clearly conflicted in the ruling it issued last week in the above-cited case. It denied a remedy to a female college instructor alleging sexual orientation discrimination, stating that federal law simply does not provide for one. And then it criticized that reality, stating that it is increasingly socially untenable to discriminate against individuals “solely based on who they date, love or marry.”

The ultimate ability to definitively change the status quo in federal law does not reside with any appellate court, though, as the 7th Circuit panel noted.

If sexual orientation is to be added to the list of protected categories, that determination must come pursuant to either a judicial ruling from the U.S. Supreme Court or new legislation passed on Capitol Hill.