260.423.9551Call
215 East Berry Street
Fort Wayne, IN 46802

7th Circuit: Title VII Prohibits Discrimination Based on “Sexual Orientation”

April 5, 2017 - In a landmark decision almost certainly headed to the United States Supreme Court, the United States Court of Appeals for the Seventh Circuit en banc has ruled that discrimination on the basis of sexual orientation is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964.

In Hively vs. Ivy Tech Cmty. Coll., No. 15-1720 (April 4, 2017), a part-time, adjunct professor (Prof. Hivey) at Ivy Tech Community College applied for at least 6 full time positions at the school between 2009 – 2014. Prof. Hively is openly lesbian. On December 13, 2013, Prof. Hively filed an EEOC charge based on her belief that she was being blocked from full time employment based on her sexual orientation. In July 2014, the school did not renew her employment contract.

After receiving her Right to Sue letter, Prof. Hively filed a Complaint in Indiana’s Northern District Court in South Bend making the same allegation. The District Court granted Ivy Tech motion to dismiss the Complaint on the basis that sexual orientation is not a protected class under Title VII, and Prof. Hively appealed. Initially, the 7th Circuit panel (made up of 3 judges) affirmed the District Court dismissal by setting forth the legal precedent supporting the idea that discrimination based on “sexual orientation” was different from “sex discrimination.”

Yesterday, all 11 judges comprising the U.S Court of Appeals for 7th Circuit (in an 8-3 vote) set aside much of the precedent for distinguishing forms of sex discrimination claims and clearly stated that employment actions amounting to discrimination made on the basis of sexual orientation are, indeed, a subset of actions taken on the basis of sex. This ruling is consistent with the position taken by the EEOC in 2015.

The 7th Circuit believes that it is consistent with the interpretation that prohibition of sex discrimination includes sexual harassment in the workplace (including Same Sex harassment); discrimination based on actuarial assumptions about a person’s longevity; and discrimination based on a person’s failure to confirm to a certain set of gender stereotypes.

Citing the Hively opinion, “Any discomfort, disapproval, or job decision based on the fact that 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.”

It is worth noting that the decision leaves open the possibility that a different conclusion might have been reached if the employment action were connected to a religious institution or related to a religious mission. In such situations, an employer may be exempted from Title VII liability because of a bona fide need to discriminate on the basis of a protected characteristic.

As always, the attorneys of Barrett McNagny, LLP are available to discuss the implication of this decision on your specific employment situation. Feel free to contact a member of our Labor and Employment group listed below. 

Legal Disclaimer

The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.

Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.

Any links to other websites are not intended to be referrals or endorsements of those sites.

An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.
YesNo