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Sexual Orientation Discrimination Banned by Title VII

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By George Khoury, Esq. on February 27, 2018 12:02 PM

Further driving a divide in a circuit split, the Second Circuit Court of Appeals joined the Seventh Circuit in finding that Title VII does in fact protect employees on the basis of sexual orientation.

Sadly, the case involves a deceased skydiving instructor who was fired after a customer complained that the instructor was gay. The estate of the deceased kept the case alive even after the plaintiff died in a subsequent skydiving accident. Interestingly, the appellate court initially did not find in favor of the plaintiff, but after a rehearing en banc, the court changed their minds on the issue of whether sexual orientation discrimination was discrimination "because of sex."

Let's Talk About Title VII

Title VII, as the Second Circuit explains, protects employees from discrimination on the basis of, or because of sex. Surprisingly, despite recent EEOC guidance explaining that discriminating against someone due to their sexual orientation violates Title VII, the Justice Department actually filed an amicus brief attempting to explain the opposite position.

Despite the federal agency's position, the Second Circuit's logic seems near infallible.

"Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."

The "but for" nature of sexual orientation discrimination may seem to be outside the box, or simply creative, thinking, but it holds true. If an employer takes an adverse action against an employee because of their sexual orientation, this leads to the logical conclusion that the same adverse action would not have been issued "but for" the employee's own sex/gender. As the circuit court notes, an individual's own sex/gender is inextricably tied to their sexual orientation. Once this logic is understood, there's almost no way to view sexual orientation discrimination except for as a form of gender/sex discrimination.

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