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The Equal Employment Opportunity Commission (EEOC) and the Seventh Circuit have taken the position that Title VII’s bar to employment discrimination “because of . . . sex” applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is difficult to deny that “sex” is not at least one “motivating factor” in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII accords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities.
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