Historic Seventh Circuit Decision Gives LGBTQ Employees More Protections

In a landmark opinion issued Tuesday, the Seventh Circuit became the first federal appellate court in the country to extend the protections afforded by Title VII of the Civil Rights Act of 1964 to sexual orientation discrimination in its Hively v. Ivy Tech Community College decision.

Though it was hard to predict exactly how the court would rule, the significance of the Court's decision late last year to hold a rare en banc hearing, usually reserved for noteworthy or complex cases, may have telegraphed the impending sea change. The Circuit's precedent had historically held that discrimination on the basis of one's sexual orientation was not covered within the definition of "sex" for purposes of Title VII's protections against sex discrimination. Sex and sexual orientation are not synonymous, most courts find, and if Congress had intended "sex" to mean anything other than the fact of being male or female, it would have said so, either in 1964 or in the years since the passage of the Act (or so the arguments go). But with its decision in Hively, the Seventh Circuit charted a different course, accepting the former professor's arguments and holding that discrimination on the basis of sexual orientation IS discrimination on the basis of sex, and is therefore covered within the language of the existing statute.

Courts have for years navigated the very fine line between sexual orientation discrimination (not previously protected by Title VII) and gender stereotyping, which was first recognized to be a form of sex discrimination by the US Supreme Court in Price Waterhouse v. Hopkins. With its decision, the Court officially steps over (and eliminates) that "gossamer-thin" line. Relying on Supreme Court precedent from Hopkins, Oncale v. Sundowner Offshore Serv., Inc. (which clarified that it makes no difference for purposes of Title VII whether the harasser is or is not the same sex as the victim), as well as Obergefell v. Hodges (protecting the right of same-sex couples to marry), the Court reasoned that its holding was bringing the law of the Circuit into conformity with the "authoritative interpretations" from these decisions and most certainly was not, as the dissent critically noted, legislating from the bench. Included in that "authoritative interpretation" was the association discrimination claim established in Loving v. Virginia, which recognized that discrimination on the basis of the race of those with whom you associate is race discrimination for purposes of Title VII.

As a number of states already recognize sexual orientation as a protected category, the practical impact for employers in terms of risk and compliance may not change significantly in light of this decision beyond the possibility of facing a claim under both federal and state law. Employers in Illinois and Wisconsin, for example, have been subject to liability for sexual orientation discrimination under the state law for some time. The Hively decision may, however, have more impact for employers in Indiana, which has no state-wide ban against sexual orientation discrimination for private employers.

Only time, and a petition from Ivy Tech, will tell whether this decision will find its way to the Supreme Court. But as the Eleventh Circuit currently considers whether to rehear en banc a similar panel decision, and with the recent decision from the Second Circuit reviving a gay man's discrimination claim under the gender stereotyping theory first recognized in Hopkins, the debate as to whether sexual orientation discrimination is covered by Title VII is certainly far from settled.

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