Identifying Next ChallengeEarlier this year we wrote about the EEOC’s decision that sexual orientation discrimination is a form of sex discrimination, which is made unlawful under Title VII. See Sexual Orientation Discrimination is Unlawful under Federal Law … For Now?

On 10/29/2015, this issue was before a district court judge who agreed with the agency’s opinion, but ultimately dismissed the employee’s claim. However, as explained below, this decision is not likely to be the last word on whether other courts, including those in Michigan, will agree that sexual orientation discrimination is actionable under federal anti-discrimination laws.

As to the case, Isaacs v. Felder Servs., LLC (10-29-15) involved a gay dietitian working for an Alabama health-care service provider. Isaacs, the plaintiff, was fired and brought a federal discrimination lawsuit asserting that in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., he was:

  1. Discriminated against by being fired on the basis of his sex, gender non-conformity, and sexual orientation;
  2. Subjected to sexual harassment that created a hostile-work-environment; and
  3. Retaliated against for complaining about that harassment.

On the issue of involving the EEOC’s policy decision that sexual orientation discrimination is prohibited by Title VII, the magistrate judge rejected the EEOC’s decision and recommended that the case be dismissed. However, the District Court judge rejected the magistrate judge’s conclusion that sexual orientation discrimination was not included in or contemplated by Title VII.

In other words, the District Court judge agreed with the EEOC that an allegation of sexual orientation discrimination, i.e., bias based on an employee’s romantic or sexual attraction to or involvement with people of the same sex is “necessarily an allegation of sex discrimination under Title VII.” The Judge further reason that if sexual orientation bias occurs based on an employee’s “perceived deviations” from “heterosexually defined gender norms,” such bias is “sex discrimination of the gender-stereotyping variety.” Ultimately, however, the District Court judge found that the former employee failed to support his sexual orientation claim because he was not able to offer evidence to suggest he was fired because of his orientation. Accordingly, the case was dismissed in favor of the employer.


In siding with the EEOC, the District Court judge noted that the U.S. Court of Appeals for the Eleventh Circuit, the jurisdiction that oversaw the District Court Judge, had yet to weigh in on the issue. The Sixth Circuit Court Appeals, the jurisdiction that includes Michigan, also has yet to weigh in on this issue.

Normally, federal courts are to give “great deference” to EEOC guidelines ” if there are aren’t compelling indications that the guidelines are wrong. The district court judge in the Isaacs lawsuit saw no reason to not follow the EEOC position, even though that was the recommendation of the magistrate.

Accordingly, if one was inclined to gamble, the safe bet is likely that as more courts address the issue of whether Title VII, in fact, covers sexual orientation, a few judges will decline to depart from the EEOC’s lead, resulting in circuit splits. This means that sexual orientation discrimination could be heading to the U.S. Supreme Court in the next couple of years.

Alternatively, Congress could come together and amend Title VII to expressly include sexual orientation. But a legislative solution concerning sexual orientation discrimination is almost certainly not likely – at least if political history has any predictive value.

Until these issues are firmly resolved, however, companies and their HR professionals need to proactively address sexual orientation discrimination as part of their overall HR risk management efforts.

For more information about complying with federal or Michigan employment laws, including proactively minimizing issues that often give rise to employment discrimination claims, contact attorney Jason Shinn.