The 7th Circuit Court of Appeals on Tuesday granted a rehearing on the issue of whether sexual orientation is protected under Title VII.
The Plaintiff in that case, Beth Hively, a part time adjunct professor at Ivy-Tech Community College in Indiana, sued the college for gender discrimination asserting that she was denied promotion to full-time status, and that Ivy Tech eventually decided not to renew her employment contract, because she is openly gay. The district court dismissed the claim, finding that Title VII does not apply to sexual orientation discrimination. Hively appealed and the court of appeals affirmed the trial court’s decision. It held that contrary to the EEOC’s position that sexual orientation is protected by Title VII, that Congress had a “narrow view of sex” when the Civil Rights Act was enacted in 1964, and that “sexual orientation and transsexualism, for example, did not fall within the purview of Title VII.” Simply put, the court found no evidence that the legislature intended to include sexual orientation as part of gender based protections when it enacted Title VII of the Civil Rights Act.
In ruling on the issue, the court noted that, despite its Hively decision, “the writing is on the wall” with regard to LGBT civil rights. Apparently it must have taken another look at that “writing on the wall” because it has agreed to rehear the case. In the meantime, employers in Illinois, and about 21 other states, must remember that outside of Title VII, state laws exist which prohibit discrimination based on sexual orientation.
