Wednesday, April 5, 2017

7th Circuit Holds Title VII Protection Includes Sexual Orientation

The 7th Circuit, a court that is often considered to be somewhat conservative, yesterday issued its decision in the much anticipated case of Hively v. Ivy Tech addressing the question of whether the prohibition against discrimination based on sex in Title VII of the Civil Rights Act of 1964 extends to sexual orientation. The court answered that question in the affirmative, becoming the first federal circuit court of appeals to make such a finding.

The issue, about which this court, as well as many others across the nation has grappled, is that Title VII prohibits discrimination based on sex. For a number of years, this was widely thought to literally protect individuals because of the fact of their gender and courts were reluctant to expand that definition. So, for instance, courts understood that Title VII prohibited an employer from refusing to hire a qualified firefighter candidate because she happened to be a woman but have been reluctant to find that the same rule applies if that candidate was not hired because she is a lesbian. Only recently have courts considered an expanded definition of “sex” in Title VII to include sexual orientation.

While many people have come to know that sexual orientation is not a choice, but a characteristic of birth, courts have struggled to find support in the law to protect sexual orientation. And, without clear legislation which defines that protection, or law that developed from court decisions, courts are reluctant to expand the meaning of statutes, including what Title VII includes in its prohibition of discrimination based on sex. Additionally, other courts, including the lower court that heard the Hively case, have found that no precedent exists to expand that definition. In fact, just three weeks ago the 11th circuit came to the opposite conclusion in a case similar to Hively on that basis.

So, what was the situation with Ms. Hively? She was an adjunct professor at Ivy Technical Community College of Indiana. And she is a lesbian. Apparently someone complained to administration after seeing Ms. Hively kiss her girlfriend goodbye as she was being dropped off on campus. The administration admonished her to stop “sucking face” in public, deeming it inappropriate behavior. Thereafter, Ms. Hively was passed over for selection to other positions and her career stalled. She alleges that she was denied employment opportunities because of her sexual orientation in violation of Title VII’s prohibition of discrimination based on sex.

So, how did the 7th Circuit reach its decision? In ruling that sex discrimination prohibited by Title VII includes sexual orientation, the 7th Circuit acknowledged no on point precedent to expand the definition of sex in Title VII, but relied on Supreme Court case law addressing similar issues. In particular, the court found sexual orientation to be similar to sex stereotyping, which the Supreme Court has previously found to be covered by Title VII, and the well known case of Oncale v. Sundowner Offshore Services, Inc., which held that Title VII prohibitions on sexual harassment included harassment by a perpetrator of the same sex. It also noted the landmark Obergefell case, which did not address Title VII, but did find that same sex partners were entitled to marry.

Finally, the court looked at protections extended by courts to individuals based on with whom they associate. For instance, the court noted “the sharp tension between a rule that fails to recognize that discrimination on the basis of the sex with whom a person associates is a form of sex discrimination, and the rule, recognized since Loving v. Virginia, 388 U.S. 1 (1967), that discrimination on the basis of the race with whom a person associates is a form of racial discrimination.” It concluded that “to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate. No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.”

What does this mean to employers? First of all, the decision of the 7th Circuit only applies in its jurisdiction; it is not the “law of the land.” But, at least in this jurisdiction, it means that employees who believe that they are the subject of discrimination, based on their sexual orientation, can bring an action under Title VII here. While the Illinois Human Rights Act (the state’s version of Title VII) already includes sexual orientation under its protections, the Hively case gives plaintiffs one more avenue of relief. The issue is bound to reach the U.S. Supreme Court now that different federal courts of appeals have reached different conclusions on the expansion of Title VII protections to include sexual orientation.