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Is Sexual Orientation Discrimination Illegal? A Federal Court Just Said Yes

May 5, 2017 Workplace Discrimination

Lesbian worker says giving her partner a goodbye kiss before work ruined her career

For many people, giving their significant other a goodbye kiss is just part of their daily routine.  But a lesbian college professor claims that doing so may have ruined her career.

She’s suing, alleging that her supervisor torpedoed her job aspirations after he spotted her giving her girlfriend a kiss before she got out of the car for work.

While this case was prompted by some seemingly mundane details from ordinary life, the issues at stake are far from ordinary — and could have a huge impact on workplace discrimination laws.

Let’s talk about how this case could affect workplace rights for lesbian, gay, bisexual, transgender, and queer (LGBTQ) workers.

Law Was Silent on Sexual Orientation Discrimination

Federal workplace discrimination laws bar discrimination based on a variety of characteristics, including age, race, religion, and gender, just to name a few.

However, Title VII of the Civil Rights Act of 1964, the main law that prohibits employment discrimination, was silent on sexual orientation.

The question was “why?” Was it because Congress did not intend to include sexual orientation as a protected characteristic? Or was it because in 1964, when the law was written, sexual orientation was not a topic that was frequently discussed?

Several cases over the last few years have prompted the courts to try and interpret the law’s silence.

In 2015, the Equal Employment Opportunity Commission (EEOC) weighed in. It issued a directive that sexual orientation should be considered sex discrimination under Title VII of the Civil Rights Act of 1964. Because the EEOC is the federal agency charged with enforcing workplace discrimination laws, the directive was significant even though it didn’t change the law.

But courts aren’t generally bound to honor enforcement directives from federal agencies. So in March of this year, a federal circuit court of appeals issued a ruling stating that sexual orientation discrimination is not protected under the law.

That effectively deflated the EEOC directive.

However, just a few weeks later, the 7th Circuit Court of Appeals heard the case from Kimberly Hively, the lesbian college professor we mentioned above. Her former employer attempted to have the case thrown out, arguing that sexual orientation was not a protected characteristic under federal law.

The 7th Circuit disagreed with that argument, and ruled in line with the EEOC guidance. It found that sexual orientation discrimination counts as unlawful sex discrimination under Title VII.

So what’s next? Hively gets to proceed with her case.

For the LGTBQ community, there may be more room to proceed with sexual orientation discrimination cases. But since two federal circuit courts have now issued opposing rulings, this issue is very likely to wind up in front of the U.S. Supreme Court at some point.

Contact Us for a Free Consultation

If you believe you’ve been discriminated against because of your sexual orientation, it’s a good idea to speak to an attorney.

Email us at, or call (267) 273-1054 for a free consultation.