Discrimination Based on Sexual Orientation is a Form of Sex Discrimination Under Federal Law

On April 4, 2017, the Seventh Circuit Court of Appeals reversed the judgment of the district court in favor of the Defendant, and returned the case to the district court for further proceedings. See Hively v. Ivy Tech Community College of Indiana., 2017 WL 1230393 (7th Cir. April 4, 2017).

The Seventh Circuit Court of Appeals, sitting en banc (an eleven-judge panel, instead of a typical three judge panel), was asked to take a fresh look at two decades of legal precedent. The Court noted that for many years, the court of appeals in this country understood the prohibition against sex discrimination excluded discrimination based on a person’s sexual orientation.

In this case, Plaintiff is openly lesbian. She began teaching as a part-time, adjunct professor at the Defendant College in 2000. Plaintiff applied for at least six full-time positions between 2009 and 2014. These efforts were unsuccessful. In July 2014, her part-time contract was not renewed. Believing that the defendant College was spurning her because of her sexual orientation, she filed a pro se charge with the Equal Employment Opportunity Commission, alleging that she was being blocked from full-time employment without just cause. She alleged she was being discriminated against based on her sexual orientation in violation of her rights under Title VII of the Civil Rights Act of 1964 (“Title VII”). After receiving her right-to-sue letter, Plaintiff filed this action in the district court for the Northern District of Indiana. Defendant College responded with a motion to dismiss for failure to state a claim on which relief can be granted. Defendant argued that sexual orientation is not a protected class under Title VII. The district court granted the defendant college’s motion to dismiss. In Hively, The Seventh Circuit Court of Appeals overruled the Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000) line of cases.

The Hively Court was tasked with deciding what it means to discriminate on the basis of sex, in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. That task is a pure question of statutory interpretation according to the Court’s opinion. The Court held that “we see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.”

According to the Hively Court, Title VII prohibits discrimination because of sex in the terms or conditions of employment. “Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” The Court noted that the Plaintiff’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some case, for a man). The Hively Court observed that to the extent Title VII prohibits discrimination based on the race of someone with whom the plaintiff associates, it also prohibits discrimination based on the national origin, or the color, or the religion, or (as relevant here) the sex of the associate. “No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Accordingly, the district court’s decision in Hively was reversed, and remanded back to the district court for further proceedings.

COMMENTS

While the Seventh Circuit Court of Appeals has now held in Hively that a person who alleges that she experienced employment discrimination based on her sexual orientation has set forth a case of sex discrimination for Title VII purposes, it should be noted that the United States Supreme Court has not directly weighed in on this issue. The take away from this major development in employment law is that individuals may now claim sexual orientation discrimination in Illinois, Wisconsin and Indiana (i.e. the states which comprise the Seventh Circuit Court of Appeals). Both employees and employers should be aware of this important development and consult legal counsel accordingly.

Disclaimer: The following is for informational purposes only. No statement, opinion or commentary is intended to provide legal advice to any specific person, organization or entity. Only a written attorney-client agreement will create an attorney-client relationship. Please contact Michael C. Holy or Carl M. Schultz to discuss all potential legal matters.