Can you believe in 2016 that it is still legal under federal law to discriminate against someone at work because of their sexual orientation discrimination?  Us either.

I have a bulletin Board above my desk.  For years now (I can’t remember how many) I’ve had a bumper sticker pinned to it that says, “Pass ENDA now.”  ENDA is a bill that has been pending before Congress in one form or another since 1994.  That’s 22 years.  ENDA would make workplace discrimination based on sexual orientation illegal.  Discrimination based on race, gender, religion and national origin has been illegal under federal law since 1964 when Congress passed Title VII of the Civil Rights Act.

In the past eight years during President Obama’s time in the White House there were a couple of times that I was optimistic (as were many others) that ENDA would pass.  My optimism, of course, failed to take into account Congress’ staggering inability to get anything done ever.

To follow ENDA’s sad long and winding history go here.

Desperate times call for desperate measures and the EEOC ,which is charged with enforcing federal laws that prohibit employment discrimination, has apparently grown tired of waiting for Congress to do anything.  The Agency has gotten creative and has started advancing the argument that Title VII’s ban on gender discrimination also prohibits sexual orientation discrimination.  The problem with that argument is that sexual orientation and gender oftentimes have nothing to do with one another.  The text of Title VII doesn’t really support the EEOC’s argument–at least not explicitly, but the spirit of the statute certainly does.  In pursuit of advancing this new position, the EEOC issued a decision last year in which it held that sexual orientation discrimination is “inherently” a sex-based discrimination.  Baldwin v. Fox, EEOC Appeal No. 0120133080.  Kate Sedey wrote about that here.

The EEOC also started advancing that argument in cases brought in federal court.  Unfortunately, every federal appellate court that has considered the Agency’s position has disagreed with it, saying that the language of Title VII just does not cover sexual orientation.  And, a couple of days ago, our Seventh Circuit begrudgingly joined those ranks again.

In a case handed down on July 28, the Seventh Circuit upheld its prior precedent and held that the definition of gender discrimination under title VII does not include sexual orientation.  The opinion was written by Judge Rovner who has crafted some wonderful opinions in favor of employee rights.  The language of Judge Rovner’s opinion made it clear that she (and presumably the other two judges on the case with her) were not happy about having to decide this way and that she, like many others, has just about had it with Congress’ inability to actually pass laws.  Judge Rovner wrote,

“Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.  Moreover, Congress has not acted to amend Title VII even in the face of an abundance of judicial opinions recognizing an emerging consensus that sexual orientation in the workplace can no longer be tolerated.”

Which brings me back to my bulletin board and my continued plea for the passage of ENDA.   It’s axiomatic to believe that gay people have the right to marry in all 50 states but not to work in environments free from discrimination.  The Seventh Circuit’s opinion illustrates the need for Congress to act and to do so quickly.

***As an important aside, in Illinois our state human rights law prohibits discrimination based on sexual orientation but people in many other states are not fortunate enough to have those protections.  In more than half the states in this country it is still perfectly legal to discriminate against someone because they are gay and that is unthinkable.