The Seventh Circuit Court of Appeals recently held that sexual orientation claims are not actionable under Title VII of the Civil Rights Act of 1964. In Hively v. Ivy Tech Cmty. Coll., the court considered a case wherein the plaintiff, a former part-time adjunct professor at Ivy Tech community college, alleged that the college refused to even interview her for any full-time teaching positions for which she applied based on her sexual orientation. 2016 U.S. App. LEXIS 13746 ( 7th Cir. July 28, 2016 ).
This issue is not new—courts across the country have considered whether Title VII protects employees from discrimination based on sexual orientation. However, this was the first time a Federal appellate court addressed the question since a July 2015 decision by the Equal Employment Opportunity Commission ( "EEOC" ), which held that discrimination based on sexual orientation violates Title VII. The Hively case sets a significant precedent in sexual orientation discrimination claims, hopefully setting the stage for legislative action or Supreme Court intervention.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 is a Federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. Generally, Title VII applies to employers with 15 or more employees. Title VII has a complicated legislative history, which was cited as reasoning in rejecting plaintiff's claims in Hively. The original purpose of Title VII was to remedy racial discrimination, and the prohibition of discrimination based on sex "was thrown in at the final hour in an attempt to thwart adoption of the Civil Rights Act as a whole." Id. Thus, "sex" has been construed narrowly, with courts holding that Title VII's prohibition on discrimination based on an individual's sex "extends only to discrimination based on a person's gender." Id.
Precedent
Also important to the Seventh Circuit in Hively was precedent holding that Title VII does not redress sexual orientation discrimination. The court cited two Seventh Circuit cases from 2000, which both relied on a Seventh Circuit case from 1984. All three cases held that "Title VII offers no protection from nor remedies for sexual orientation discrimination." Id. Accordingly, the Seventh Circuit in Hively held that it was "presumptively bound" by its own precedent "even in the face of an abundance of judicial opinions recognizing an emerging consensus that sexual orientation discrimination in the workplace can no longer be tolerated." Id.
EEOC Decision
The EEOC is a federal administrative agency that enforces federal laws prohibiting employment discrimination, including Title VII. In July 2015, for the first time, it held that "sexual orientation is inherently a 'sex-based consideration' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin v. Foxx, EEOC Appeal No. 0120133080 ( July 16, 2015 ). While this decision applies to federal government employees and not the private sector, decisions of the EEOC are entitled to deference by courts.
The EEOC reasoned that the border between sexual orientation discrimination, which is not actionable under Title VII, and discrimination based on sex, which is actionable under Title VII is imprecise and that "sexual orientation is inseparable from and inescapably linked to sex." As an example, the EEOC stated "assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male." Nonetheless, the Seventh Circuit in Hively did not give deference to the EEOC and concluded, based on binding precedent, that "Title VII, as it stands, does not reach discrimination based on sexual orientation."
Implications of Hively
The Seventh Circuit in Hively understood the potential absurdities that could result from its decision and precedential decisions on this issue. Following its holding, courts must continue to separate gender discrimination claims, which are actionable under Title VII, from sexual orientation claims, which are not actionable. The court admitted that "doing so creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and mannerisms at work, the more likely a court is to recognize a claim of non-conformity which will be cognizable under Title VII as sex discrimination." Id. Thus, the line of cases holding that Title VII does not apply to sexual orientation discrimination claims "create[s] a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act."
State Anti-Discrimination Laws
Pursuant to Hively, "any private employer can summon an employee into his office and state, 'You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.' And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation." Id. Illinois, through the Illinois Human Rights Act, and the City of Chicago, through the Chicago Human Rights Ordinance, prohibit discrimination in employment based on sexual orientation.
However, nearby states including Michigan and Indiana do not have similar state laws prohibiting discrimination based on sexual orientation in the employment context. Thus, a piecemeal approach to this issue varying widely state-to-state will continue until the legislature takes action or until the Supreme Court rules on this issue.
If you are interested in learning more about regulations affecting employment, please feel free to contact any of Clark Hill's experienced attorneys.
Courtney Posnik is an Associate Attorney in Clark Hill PLC's Health Care Practice Group in the firm's Chicago office. She focuses her practice on healthcare law, assisting clients with transactional, corporate, and regulatory matters. You may contact her at 312-985-5535 or cposnik@clarkhill.com .
