Title VII Extends to Sexual Orientation, 7th Cir. Rules

April 5, 2017

On April 4, 2017, the Seventh Circuit Court of Appeals became the first federal appeals court to rule that Title VII protects private employees from discrimination on account of sexual orientation. The decision in Hively v. Ivy Tech Community College of Indiana marks a departure from a long line of cases in both the Seventh Circuit and almost every other circuit ruling that Title VII protections applied only to “sex” and not sexual orientation. Because of this departure from prior precedent, the case was heard en banc by the entire Seventh Circuit, and decided 8-3 in favor of extending federal protection to gay and lesbian individuals. The full text of the opinion can be found here.

In reaching its decision, the Court relied upon a wide range of Supreme Court cases, arising in and out of the employment discrimination context, to find that today’s concept of discrimination on the basis of “sex” must also include sexual orientation. These included Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination. The Court reasoned that it is difficult “to extricate the gender conformity claims from the sexual orientation claims,” since traditional gender stereotypes favor heterosexual relationships. In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the Supreme Court held that Title VII protections extended to same-sex sexual harassment because such harassment is still based on “sex” regardless of the sex of the harasser. The Seventh Circuit also relied upon the Supreme Court’s recent recognition that the Due Process and Equal Protection Clauses of the Constitution protect a same-sex couples’ right to marry in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Following Obergefell, a ruling that Title VII did not extend to sexual orientation claims would create “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Finally, the Seventh Circuit relied upon a line of cases ruling that discrimination based upon the protected characteristic of the person or persons with whom the employee associates violates Title VII. In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court found that discrimination based upon an employee’s interracial marriage violated Title VII. The Seventh Circuit extended this protection to discrimination based upon the sex of persons with whom the employee associates or enters into relationships.

While considered a landmark decision, Hively will not have a tremendous impact on employers based in New England. First, the decision is only binding on courts in the Seventh Circuit, which is comprised of Illinois, Indiana, and Wisconsin. It is likely, however, that this decision will be the stepping stone to more courts adopting this position, until the issue is eventually decided by the Supreme Court. Second, and perhaps more important, more than twenty states have already enacted laws that protect employees against discrimination based on sexual orientation. These states include all of New England, New York, New Jersey, Delaware, Maryland, and many states on the West Coast and in the Midwest. Thus, current employment policies should already address and prohibit sexual orientation discrimination.