The Federal Seventh Circuit Court of Appeals, recently rejected a professor’s claim that she had been unlawfully denied full-time employment because of her sexual orientation. Hively v. Ivy Tech Comm. College, 2016 WL 439703 (7th Cir. July 28, 2016). The case was brought by Kimberly Hively, a lesbian, part time adjunct professor at Ivy Tech Community College, who sued her employer in August 2014. She claimed that she was repeatedly passed over for promotions and a full-time position because of her sexual orientation. Despite many years of teaching and positive evaluations, she never advanced.
This Seventh Circuit ruling is the first federal appeals court decision to address this issue after the EEOC made clear that it views sexual orientation discrimination as discrimination on the basis of “sex” within the meaning of Title VII. The EEOC most recently confirmed this in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015). The Hively Court specifically considered whether Title VII’s protections extend to sexual orientation bias.
Previously, the EEOC held that “sexual orientation is inherently a ‘sex-based consideration” and that sexual orientation discrimination is “necessarily an allegation of sex discrimination under Title VII.” While the EEOC’s decisions are not binding, they are entitled to some deference given that the EEOC is the agency primarily charged with enforcing Title VII.
While sympathetic to Hively’s plight and condemning workplace harassment and discrimination, the Appellate Court nonetheless found that they were bound by circuit precedent and upheld the trial court which found that “Title VII does not apply to claims of sexual orientation discrimination and therefore Hively has made a claim for which there is no legal remedy.” The Court noted that, without U.S. Supreme Court or Congressional action, sexual orientation is not a protected class under federal law and workplace protections for lesbian, gay, and bisexual workers will not be recognized. In the Court’s eyes, “the distinction between gender non-conformity claims and sexual orientation claims has created an odd state of affairs in the law” and “recent legal developments and changing workplace norms require a fresh look at the issue of sexual orientation discrimination under Title VII.”
The Seventh Circuit did point out that in certain circumstances, LGBT persons are protected by Title VII under a sex stereotyping theory. This theory may offer protections to LGBT persons in two broad categories of situations. First, lesbian, gay, and bisexual employees harassed or discriminated against based solely on their failure to conform to traditional societal notions of masculinity or femininity may fine recourse. Second, employees who identify as transgender can bring a Title VII claim based on a sex stereotyping theory. As gender non-conformity is almost always an issue for transgender employees, transgender plaintiffs have more consistently found protections under Title VII.
What does this mean for your workplace? While the law under Title VII may be unsettled, the EEOC clearly takes the position that sexual orientation discrimination is covered under Title VII. In addition, almost half of the states, including Illinois, have laws prohibiting sexual orientation in employment. You need to be aware of the law in every state in which you do business. Lastly, there are two other Circuit Courts who have cases pending which address the same issue, so it is likely that the U.S. Supreme Court will address Title VII sooner rather than later. The attorneys at Rock Fusco & Connelly, LLC can help you navigate this rapidly changing area of law.