Seventh Circuit: Sexual Orientation is Protected Under Title VII

On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit, in Hively v. Ivy Tech Community College of Indiana (No. 15-1720), held that discrimination based on sexual orientation is protected under Title VII of the Civil Rights Act of 1964. The case involves an openly gay woman who is a part-time adjunct professor at a college. The woman had unsuccessfully applied for full-time positions on several occasions between 2009 and 2014, when the college declined to renew her contract. The woman brought suit against the college, claiming discrimination based on her sexual orientation. The district court agreed with the college, which argued that sexual orientation is not a protected category under Title VII (relying on Seventh Circuit precedent). The Seventh Circuit took the case on appeal, and originally agreed with the district court and its own precedent. However, the case went before the full Seventh Circuit (called an en banc review), where the court held that Title VII does extend to protections for discrimination based on sexual orientation.

The Seventh Circuit explained that it was not adding sexual orientation as a new protected class. Rather, the court concluded that adverse employment actions based on sexual orientation should be considered as actions taken on the basis of sex, which is a protected Title VII class. The court reasoned that the woman in Hively was punished for not conforming with the stereotype of female heterosexuality (i.e., that women should be involved in intimate relationships only with men). Therefore, any employment discrimination that is based on sexual orientation by necessity involves the employee’s sex, and so for an employer to punish a female employee for having intimate relations with a same-sex partner was no different than punishing a female employee for dressing or speaking differently than other female employees. Either way, the decision was based on sex.

The court also stated that any law that discriminates against a person because of the protected characteristics of one with whom she associates also discriminates against that person for her own traits. Lastly, the court reviewed the U.S. Supreme Court’s progression on court holdings relating to sexual orientation, observing the gradual and steady extension of protections under the Constitution, noting that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.

Until the Seventh Circuit’s ruling, no federal court of appeals has taken the position that sexual orientation is protected under Title VII, and just last month the U.S. Court of Appeals for the Eleventh Circuit came to the opposite conclusion: That Title VII did not extend to such protection. Further, the EEOC has historically taken the position that sexual orientation is protected under Title VII. With the courts’ split decision, the issue may be headed to the U.S. Supreme Court.

For employers, the case serves as a reminder of the risks in making any employment or benefit decision based on sexual orientation of an employee. This case sheds light on the federal risks under Title VII, but there are also state discrimination laws to consider. Overall, employers should review their employment and benefit practices to ensure they are treating all employees equally, including offering benefits for transgender-related services and items. Employers should work with outside counsel in developing compliant employment and benefit strategies.

Hively v. Ivy Tech Community College of Indiana »