Sexual-Orientation Discrimination Actionable under Title VII

On September 4, 2020, the 7th Circuit affirmed an order of summary judgment in favor of an employer-defendant in a lawsuit in which the plaintiff alleged discrimination on the basis of sexual-orientation and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII).  Marshall v. Indiana Department of Correction, No. 19-3270 (7th Cir. Sept. 4, 2020).  In its opinion, the 7th Circuit recognized that in Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017), the 7th Circuit extended Title VII to include sexual-orientation discrimination; and that in Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731 (2020), the Supreme Court did the same.  According to the Supreme Court, Title VII prohibits employers from firing an employee on the basis of sexual orientation.

The plaintiff filed two Title VII claims: discrimination and retaliation.  The district court concluded that even if the plaintiff were meeting the defendant's legitimate performance expectations, he still did not establish that similarly situated employees who did not identify as homosexual were treated better than he was.  The 7th Circuit agreed with the district court that the plaintiff's case failed due to the lack of a similarly situated comparator employee.  The plaintiff failed to identify a similarly situated employee outside his protected class who was treated better than he was.  He therefore failed to establish a prima facie case of employment discrimination.  Accordingly, he could not shift the burden of production to the defendant-employer to come forward with a legitimate, non-discriminatory reason.  The district court also concluded that even if the plaintiff could establish a prima facie case, he could not show that the defendant's stated reasons for terminating him were pretextual.  He could not show that the defendant's explanation for his termination was a lie.  The plaintiff lost his discrimination claim because he could not establish that the defendant terminated him because of his sexual orientation.  

The plaintiff's retaliation claim failed because he could not establish that he engaged in statutorily protected activity.  His exposure of an employee's breach of confidentiality does not constitute protected activity under Title VII.  Thus, retaliation for the exposure is not actionable retaliation under Title VII.  Because the plaintiff could not show that any statutorily protected activity was the "but for" cause of the termination, his retaliation claim failed.