Is sexual orientation discrimination prohibited under Title VII?
This question, which has long plagued employers, has been recently decided by the Seventh Circuit Court of Appeals. In a landmark decision (Hively v. Ivy Tech Community College of Indiana), the 7th Circuit held that discrimination on the basis of sexual orientation is a form of discrimination that is prohibited under Title VII. This holding aligns with the position taken by the EEOC in its July 2015 administrative decision (Baldwin v. Foxx) that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII”.
The plaintiff (Hively) was a lesbian and was open about her sexual orientation. She had been working as a part-time adjunct professor for Ivy Tech Community College for several years. Throughout her employment with the college, Hively applied for several full-time positions for which she was qualified, but she never received an interview. In 2014, the college failed to renew Hively’s contract for the 2014-2015 academic year – effectively terminating Hively’s employment with the college.
Following her termination, Hively filed a lawsuit in the Northern District of Indiana claiming that she was terminated in violation of Title VII – specifically that she was discriminated against because of her sexual orientation.
The college argued that Title VII’s protections did not extend to sexual orientation discrimination and, the trial court agreed – dismissing Hively’s claims.
Hively, however, appealed her case to the Seventh Circuit. After a long battle in court, the 7th Circuit concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII to a claim of discrimination based on sexual orientation..
Why Should I Care?
This decision is significant to employers across the United States because this is the first case where a federal appellate court has confirmed that sexual orientation is a protected class under Title VII.
While several states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin) have already included sexual orientation (and, in some cases, gender identity/transgender) under their state anti-discrimination laws, this case sends the message to all employers that Title VII’s protects private workers based on sexual orientation and gives LGBT plaintiffs in other Circuits ammunition to fuel the argument that Title VII protections extend to the LGBT workforce.
In light of this decision, it is recommended that employers in the Seventh Circuit take steps to verify (and ensure) sexual orientation is treated the same as any other protected class in all aspects of their business. This includes updating handbook policies to specifically include sexual orientation to the list of protected classes, training managers and supervisors about the new LBGT protections and verifying that the organization’s hiring, discipline and discharge procedures comply with Title VII.
For employers outside of the Seventh Circuit, this case may be a sign of things to come in your own jurisdictions. It is advisable that employers in states whose state anti-discrimination statutes do not have express protections against sexual orientation practices strongly consider taking similar steps to ensure that sexual orientation is treated the same as any other protected class in all aspects of their business.