On April 4, 2017, the United States Circuit Court of Appeals for the Seventh Circuit in the case Hively v. Ivy Tech Community College of Indiana, became the first federal appellate court to hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Seventh Circuit’s ruling is a landmark decision and a break from the Court’s own precedent and the rulings of other federal appellate courts.
Title VII provides that it is unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin”. For many years, the federal appellate courts have consistently rejected that the prohibition against sex discrimination under Title VII covered discrimination on the basis of a person’s sexual orientation. In 2015, however, the U.S. Equal Employment Opportunity Commission (the “EEOC”) issued agency opinions recognizing an expanded view of “sex” and providing that Title VII also covers discrimination based on an individual’s sexual orientation. The United States Supreme Court, however, has yet to address such issue.
In Hively, the plaintiff was a part-time professor at a community college where, over the course of five years, she unsuccessfully applied for at least six full-time teaching positions. Thereafter, in 2014, the college declined to renew her part-time teaching contract. Hively, who is openly gay, filed a charge of discrimination against the college with the EEOC, and thereafter a lawsuit in the US District Court of the Northern District of Indiana, on the grounds that she was denied full time employment and promotions based on her sexual orientation in violation of Title VII. The Northern District of Indiana dismissed Hively’s case citing prior precedent that sexual orientation is not a protected class under Title VII. Hively then appealed to the Seventh Circuit.
The Seventh Circuit began its analysis by pointing out that “the goal posts have been moving” on what constitutes sex discrimination under Title VII since it was passed in 1964. The Court cited numerous Supreme Court decisions interpreting Title VII to cover more than just an employer’s decision to not hire a person of a certain gender, including the protection against sexual harassment and gender stereotyping. In holding that discrimination on the basis of sexual orientation is a form of sex discrimination, the Seventh Circuit reasoned that it is “actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex”. The Court also explained:
Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.
In light of the Hively decision and split amongst the federal appellate circuit courts, the issue of whether Title VII prohibits discrimination based on sexual orientation will likely be decided by the United States Supreme Court.
The Hively decision applies to employers located in the Seventh Circuit which includes Indiana, Illinois and Wisconsin. Employers in other states, however, should be aware of other state and local laws that already prohibit discrimination based on sexual orientation. Employers should review their company’s discrimination and other employment policies to ensure compliance with this recent decision and any other anti-discrimination laws.
If you have any questions regarding this recent decision or issues related to employment discrimination, please contact:
firstname.lastname@example.org or (312)368-0100.