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Title VII Extends Protection to Sexual Orientation Says the Seventh Circuit

By: Dan Cohen – 4/6/17

Earlier this week, the 7th Circuit Court of Appeals became the first federal appellate court to extend Title VII of the Civil Rights Act of 1964 to workplace discrimination on the basis of sexual orientation. The decision should not come as a surprise following the announcement last July by the Equal Employment Opportunity Commission that Title VII does prohibit discrimination on the basis of sexual orientation, which would be considered a form of sex discrimination.

The case was filed in 2014 by Kimberly Hively, a former part-time instructor at Ivy Tech Community College who said the college did not hire her full-time because she was a lesbian. Ivy Tech denied her claim. The federal trial court dismissed the case finding that Title VII did not protect against discrimination on the basis of sexual orientation. The 7th Circuit initially agreed with the trial court and affirmed the dismissal of the case.  However, the 7th Circuit decided to rehear the appeal en banc (before the entire bench) and reversed the lower court in an 8-3 decision.

According to Chief Judge Diane P. Wood, “Hively’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.” Judge Wood went on to conclude that sexual orientation is a form of discrimination based upon sex. Judge Richard Posner, in his concurring opinion, acknowledged that even though Title VII was passed without consideration of one’s sexual orientation, the concept of sex discrimination has since broadened as society’s definitions of gender and sex have also broadened.

The dissenting opinion, written by Circuit Judge Diane Sykes, argued that extending Title VII protection to sexual orientation violates constitutional design and gives the court a power left for Congress. According to Judge Sykes, “however welcome today’s decision might be as a policy matter, it comes at a great cost to representative self-government.” Moreover, rejecting the notion that sexual orientation is a form of sex discrimination, Judge Sykes noted the many federal statutes that refer to both sex and sexual orientation separately.

If it stands, the decision gives Kimberly Hively and other gay and lesbian people the right to sue over what they perceive as discriminatory employment practices based on their sexual orientation. This does not end the case, which will now proceed to trial on the merits unless Ivy Tech seeks to involve the Supreme Court. However, with the current composition of the High Court, a 4-4 ruling is likely, which would not change the outcome.  Of course, one can see how confirmation of Judge Neil Gorsuch could affect the outcome of this issue when it does reach the Supreme Court.

From my standpoint, I do not believe the case requires employers to do anything different or special. We have been preaching to our clients for my entire career that decisions should be based upon legitimate, non-discriminatory business reasons, that those decisions be well-documented and that policies and rules be applied uniformly.  This decision does not change that approach.  Moreover, many businesses have already modified their EEO policies to include sexual orientation and gender identity as protected classifications.  This ruling does not necessarily require that since the rationale of the 7th Circuit is that discrimination on the basis of sexual orientation is a form of sex discrimination, which is already a protected classification.  I do, however, think it’s a good idea to include catch-all language that extends the policy to “any other protected classification.”  If you conduct business in a state or municipality that specifically protects against discrimination on the basis of sexual orientation and gender identity, it is probably worth making the modification.