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Friday, April 7, 2017

Seventh Circuit Rules that Sexual Orientation Discrimination is Prohibited by Title VII

On April 4, 2017, in Hively v. Ivy Tech Cmty. Coll. of Indiana, No. 15-1720, the Seventh Circuit en banc (all of the judges), on rehearing of a panel decision disallowing the plaintiff’s claim, became the first federal Court of Appeals to hold that discrimination based on sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964.  Title VII makes it unlawful for employers to discriminate on the basis of “race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a).  The ruling did not carve out sexual orientation as a separate protected class, but rather found that “sexual orientation” is encompassed within “sex” and is therefore already protected by federal law. 

In Hively, the plaintiff had applied six times for a full-time professor position at Ivy Tech and was denied a position each time, allegedly because she is a lesbian.  Hively filed a discrimination claim based on sexual orientation, which was dismissed by the district court because sexual orientation is not enumerated as a protected class in Title VII.  The Seventh Circuit reversed the lower court, holding that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” 

There has been a long debate over sexual orientation and related claims under Title VII, stemming in large part from a 1989 U.S. Supreme Court decision: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the Court held that an accountant alleging that she was treated differently in partnership considerations based on “sex-stereotyping” – because she did not act, dress, or talk “femininely” enough – could have a claim under Title VII.  Since Price Waterhouse, lower courts have struggled to delineate between claims of discrimination based on sex-stereotyping, which is prohibited by Title VII, and those based on sexual orientation, which most Circuit Courts (including the Eighth Circuit, in which Missouri sits) have held is not prohibited by the current law.  But as the court in Hively pointed out, that distinction is sometimes very difficult to draw, because homosexuality is often “the ultimate case of failure to conform” to sex stereotypes, in that the stereotype is men partnering with women and vice versa. 

For employers in Illinois and other states in the Seventh Circuit, Hively creates binding precedent and must be followed (unless it is reversed).  For employers elsewhere, this case may signal the beginning of a trend in favor of finding Title VII protection for LGBT employees, especially after the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges, 135 S.Ct. 2584 (2015).  On the other hand, Congress has consistently heard and failed to adopt an amendment to Title VII adding sexual orientation as a protected class, so this decision might spur it to act.  Some states and cities already have laws or ordinances providing that sexual orientation is a protected class. 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.


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