On 4/4/17, in Hively v. Ivy Tech Comm. College, No. 15-1720 (7th Cir. Apr. 4, 2017) (en banc), the 7th Circuit Court of Appeals issued a significant opinion, holding that sexual orientation discrimination is a type of sex discrimination prohibited under Title VII.
In Hively, a part-time adjunct professor alleged that her former employer repeatedly denied her consideration for a full-time teaching position and that her part-time contract was not renewed based on her sexual orientation. Hively’s employer filed a motion to dismiss, arguing that sexual orientation is not covered by Title VII and the U.S. District Court for the Northern District of Indiana agreed and dismissed the case. Hively appealed to the 7th Circuit, which initially affirmed the District Court’s dismissal of Hively’s claim. However, the 7th Circuit granted Hively’s request for an en banc hearing and ultimately reversed its decision, holding that sexual orientation is protected by Title VII.
In so holding, the 7th Circuit overruled prior court precedent which had held that sexual orientation is not covered by Title VII. The court noted that the line between sexual orientation and sex discrimination has become increasingly blurred. The court referred to prior court precedent which held that Title VII’s prohibition against sex discrimination applies to harassment in the workplace between members of the same sex as well as discrimination based on a person’s failure to conform to gender stereotypes. The court also noted that it was impossible to discriminate against an individual based on sexual orientation and not to discriminate based on the individual’s sex.
Recently, the 11th and 2nd Circuits have held that sexual orientation is not protected by Title VII, thereby creating a circuit split and making it very likely that the U.S. Supreme Court will take up this issue in the near future.
Practice Tip: In light of Hively, Illinois, Indiana and Wisconsin employers should review and update their employment policies and practices to include EEO protections based on sexual orientation. Employers in all jurisdictions should keep a close eye on this issue as it will probably be taken up by the U.S. Supreme Court.