Sexual orientation bias and Title VII in flux

Despite a changed EEOC position and several victories in other federal circuit courts of appeal, employees alleging sexual orientation discrimination in Minnesota workplaces cannot bring that claim under Title VII. Sexual orientation is not a protected classification under Title VII.

Recent case: Several female athletic coaches who formerly worked for the University of Minnesota found their contracts were not renewed.

They sued, alleging that the university had discriminated against them on account of their sexual orientation. They brought their lawsuit under Title VII’s sex discrimination provisions, alleging that sexual orientation discrimination is sex discrimination.

But their Title VII claims were dismissed because the 8th Circuit, which covers Minnesota employers, has not overturned an earlier Title VII decision, which found sexual orientation discrimination was not covered by Title VII. (Miller et al. v. University of Minnesota, DC MN, 2018)

Note: The women may appeal the decision to the 8th Circuit Court of Appeals.

Several federal circuits have now determined that prior case law on sexual orientation and Title VII is wrong and have issued decisions upholding the right to bring a lawsuit over sexual orientation discrimination under federal law. For example, the 7th Circuit Court of Appeals and, most recently, the 2nd Circuit Court of Appeals have both concluded that sexual orientation discrimination is sex discrimination under Title VII. However, the 11th Circuit Court of Appeals recently reached the opposite conclusion, siding with the current 8th Circuit position. (See “Another circuit rules anti-gay bias is illegal.”)

Stay alert to possible challenges in the next year, as one or more of these cases may end up in the U.S. Supreme Court for final resolution of this issue.

Meanwhile, remember that Minnesota’s anti-discrimination laws already protect employees from discrimination on the basis of sexual orientation.