Court weighs in: Sexual orientation is protected class

Last week brought good news for members of the LGBT community, as the Seventh Circuit Court of Appeals, which covers Wisconsin, Illinois, and Indiana, ruled on April 4 that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

According to local employment law attorneys, the ruling effectively bolsters Wisconsin’s already robust anti-discrimination law and provides further recourse for any employees or applicants who believe they have been discriminated against because of sexual orientation.

In theory, the Seventh Circuit Court of Appeals decision in Hively v. Ivy Tech Community College of Indiana should not have any impact on workplace protections for employees in Wisconsin, notes Josh Johanningmeier, shareholder with Godfrey & Kahn. “The Wisconsin Fair Employment Act (WFEA) already prohibits discrimination on the basis of sexual orientation. Unlike Title VII, which only applies to employers with 15 or more employees, the WFEA applies to all employers in Wisconsin with one or more employees.”

Since the Hively decision also applies to employers in Illinois, which already afforded some protection based on sexual orientation, and Indiana, which did not, the decision offers new or additional protection to LGBT employees in those states, Johanningmeier adds.

For LGBT employees living in the states covered by the Seventh Circuit Court of Appeals, this means they can bring claims alleging discrimination on the basis of their sexual orientation under federal law, says Caitlin M. Madden, an attorney with Hawks Quindel. Wisconsin was the first state to ban discrimination against employees on the basis of their sexual orientation, in 1982.

According to Johanningmeier, although employees in Wisconsin were already protected from discrimination based on their sexual orientation under the WFEA, the remedies available to them under state law were not as robust as under Title VII.

“Under the WFEA, employees who are subjected to discrimination can only recover, generally speaking, back pay, interest, and attorney’s fees and costs,” Johanningmeier says. “In addition, an employee may be entitled to reinstatement to his or her employment or to front pay (i.e., lost future wages) in lieu of reinstatement.

“Under Title VII, an employee who is subjected to discrimination is entitled to all of the remedies available under the WFEA, as well as to compensatory and punitive damages, subject to certain caps based on the size of the employer.”

Anti-discrimination laws, in a nutshell

At the federal level, there are multiple laws that prohibit discrimination in the workplace, notes Johanningmeier. “One of the better-known anti-discrimination laws is Title VII of the Civil Rights Act of 1964. Another well-known federal anti-discrimination law is the Americans with Disabilities Act (ADA), which generally prohibits discrimination in employment on the basis of an individual’s disability.

“To comply with these laws in practice, most employers adopt equal employment and anti-harassment policies that prohibit discrimination and harassment — which is just a form of discrimination — on the basis of any of these protected characteristics,” Johanningmeier continues. “Employers will also prohibit retaliation against an employee who complains about discrimination, reports discrimination, or participates in investigations regarding the alleged discrimination.”

According to Johanningmeier, to avoid potential liability, employers also (1) investigate complaints of unlawful discrimination; (2) determine whether discrimination occurred as alleged and, if so, whether any disciplinary action is warranted; and (3) take steps necessary to prevent discrimination from occurring in the future.

Court confusion

Although some federal district courts ruled previously that Title VII prohibited discrimination based on sexual orientation, there is inconsistency from one district to another, notes Johanningmeier.

“Even the Courts of Appeal cannot agree on this issue,” he explains. “Just one month before the Seventh Circuit issued its Hively decision on April 4, 2017, the Eleventh Circuit Court of Appeals ruled that sexual orientation was not protected under Title VII in a case named Evans v. Georgia Regional Hospital. The competing outcomes of these two decisions increase the likelihood that the United States Supreme Court will rule on this issue to resolve this question once and for all.”



Federal complaint process

Under federal law, an employee who believes they have been subjected to discrimination in the workplace because of their protected status — race, color, national origin, sex, religion, or disability — must file a complaint with the federal Equal Employment Opportunities Commission (EEOC) within 300 days of the alleged discriminatory action, explains Madden.

“After filing a complaint, the EEOC may request more information from the employee and the employer to determine whether there is any merit to the charge,” Madden says. “The EEOC may assist the parties in trying to resolve the matter, they may decide to file a lawsuit in federal court against the employer to enforce the law, or they may give the employee a Right to Sue letter so the employee can file a lawsuit in federal court themselves.

“In a lawsuit, the employee can seek compensatory damages to make them whole for harms caused by the discrimination, punitive damages, and/or a court order requiring the employer to stop the discriminatory practice, and to work to prevent discrimination in the future.”

Bottom line for the workplace

As a result of the Seventh Circuit Court ruling, employers in Wisconsin must now take into account the additional risks associated with additional damages available to employees under Title VII, says Johanningmeier. However, aside from this consideration, the Hively decision should not have much of an impact on Wisconsin employers because the WFEA already prohibited sexual orientation discrimination.

Under this decision, employers are prohibited from discriminating against either employees or job applicants because of their sexual orientation, in hiring, pay, job assignments, promotions, disciplining, or deciding to terminate an employee, notes Madden.

“There is a common misconception in the general public that the protections of Title VII and similar state laws only apply to minorities,” adds Johanningmeier. “Under Title VII, however, the prohibition against discrimination based on race applies to employees of all races, including Caucasians. Likewise, the prohibition on sex discrimination applies to men, not just women. If sexual orientation remains protected under Title VII, that protection will apply to employees of all sexual orientations, including heterosexual employees.”

“If you believe you may have been subjected to discrimination at work, contact an attorney or a federal or state agency,” advises Madden. “Most employment discrimination claims have a very short window for making a claim, typically 300 days from the date of discrimination.”

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