NEWS
The Seventh Circuit's Big Decision:
Sexual Orientation Discrimination Is
Prohibited By Title VII
04.11.2017
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana,
and Wisconsin), sitting en banc, handed down what is being called a monumental decision in the
development of legal protections for the LGBTQ community. For the first time, a Federal appellate court
has ruled unequivocally that discrimination against an employee based on his or her sexual orientation
is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
The Facts and Legal History ofHively v. Ivy Tech Community College[1]
Kimberly Hively began working as a part-time math professor at Ivy Tech Community College in 2000.
In December 2013, Ms. Hively filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) claiming that Ivy Tech had discriminated against her because of her sexual
orientation. Specifically, the school had refused to interview her for any of the six full-time positions that
had become available during her time working at the college, despite her having the necessary
qualifications for full-time employment. Ms. Hively alleged that the school did not consider her for these
positions and ultimately terminated her employment because she is lesbian.
Following the completion of the administrative procedure, Ms. Hively sued Ivy Tech in August 2014. A
Federal district court in Indiana dismissed her case, though, on the basis that Title VII of the Civil Rights
Act of 1964 does not protect employees from discrimination based on sexual orientation. While Title VII
protects against sex discrimination, the Court concluded that “Congress intended the term ‘sex’ to mean
‘biological male or biological female,’ and not one’s sexuality or sexual orientation.”[2]
In April 2015, Ms. Hively appealed the lower court’s decision to the United States Court of Appeals for
the Seventh Circuit, seeking reversal of the lower court’s decision. However, the three-judge panel
upheld the prior decision and found that Title VII did not protect individuals on the basis of sexual
orientation.
Ms. Hively requested a rehearing of the case by the entire court, and, on October 11, 2016, that request
was granted. The full eleven-member Seventh Circuit Court of Appeals heard arguments in the case on
November 30, 2016. Counsel for Ms. Hively argued at the hearing that sexual orientation is a form of
sex discrimination, which is already banned under federal law.
The Ruling
Sitting en banc, the Seventh Circuit Court of Appeals held that “a person who alleges that she
experienced employment discrimination on the basis of her sexual orientation has put forth a case of
sex discrimination for Title VII purposes.” The Court reached this decision by relying on a “common
sense reality,” and noting that the line between sexual orientation and sex has become increasingly
blurred over time. Importantly, the Court’s majority opinion gave no mind to the dissenters’ objection
rooted in the fact that Title VII’s language does not expressly designate sexual orientation as a
protected characteristic. The majority said this fact was “neither here nor there.” The Court ultimately
held that “[t]he logic of the Supreme Court’s decision, as well as the common-sense reality that it is
actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis
of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find
and observe that line.”
Takeaways
What makes Hively v. Ivy Tech Community College a notable case is that the Seventh Circuit Court of
Appeals is the highest court in the country to rule that Title VII prohibits employers from discriminating
against employees because of their sexual orientation. To be sure, other courts before the Hively
decision, including those from the EEOC, have taken this same position, but none has had an impact as
substantial as the Seventh Circuit’s recent ruling.[3]
Federal appellate courts typically have been much less willing to read Title VII as protecting employees
against sexual orientation discrimination. In fact, the Eleventh Circuit held in March 2017 that
discrimination on the basis of an employee’s sexual orientation is not prohibited under Title VII.[4] The
split in appellate court decisions on this issue will likely have to be resolved by the U.S. Supreme Court,
unless Congress takes action and adds sexual orientation as a characteristic protected by Title VII – a
move that is unlikely to occur under the current administration.
There is much uncertainty as to how those who identify as homosexual will be protected under Title VII
in the future, notwithstanding the Seventh Circuit’s decision in Hively. Private employers in states other
than Wisconsin, Indiana, or Illinois are not mandated by federal law to enact and enforce policies
preventing workplace discrimination based on sexual orientation. Nonetheless, many employers have
taken steps to promote inclusive, non-discriminatory environments by acknowledging protection and
non-discrimination based on sexual orientation, gender identity and gender expression in their
employment policies. For additional ideas on implementing non-discrimination policies in the workplace,
please see our recent article here.
th
[1] No. 15-1720 (7 Cir., Apr. 4, 2017).
[2] Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d
701, 704 (7th Cir. 2000).
[3] See Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL
4397641, at *5, *10 (July 16, 2010).
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[4] Jameka Evans v. Georgia Reg. Hosp., No. 15-15234 (11 Cir.,
Mar. 10, 2017).
Related People
Allison A. Cohan – 919.981.4068 – [email protected]
Related Services
Labor & Employment