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 conform 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. 

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