Seventh Circuit: Title VII Covers Sexual Orientation DiscriminationApril 5, 2017 – Articles
On Tuesday, the Seventh Circuit Court of Appeals, which encompasses Illinois, Indiana and Wisconsin, became the first federal circuit to rule that sexual orientation is covered by Title VII of the Civil Rights Act of 1964. The landmark decision created a circuit split between the Seventh Circuit and every other court of appeal to have addressed the issue, setting the stage for a possible Supreme Court showdown regarding the scope of Title VII’s coverage.
The plaintiff in this case, Kimberly Hively, is openly lesbian and had been teaching as a part-time, adjunct professor at Ivy Tech Community College’s South Bend campus. Between 2009 and 2014, she applied for at least six full-time positions with the college but was rejected from each one. The college eventually declined to renew Ms. Hively’s part-time contract. Following her termination of employment, Ms. Hively filed an Equal Employment Opportunity Commission (EEOC) charge stating simply that she believed she was discriminated against because of her sexual orientation. After receiving a right-to-sue letter, Ms. Hively sued in the United States District Court for the Northern District of Indiana.
The district court granted Ivy Tech’s motion to dismiss, holding that according to the Seventh Circuit’s earlier precedent, sexual orientation was not protected by Title VII. A three-judge panel of the Seventh Circuit affirmed after conducting an exhaustive analysis of cases addressing the issue and noting that it was ultimately bound by the Seventh Circuit’s earlier holdings.
The case eventually was heard by the full panel of the Seventh Circuit, which vacated the three-judge panel’s decision and held that sexual orientation claims are cognizable under Title VII. In doing so, it relied primarily on Supreme Court precedent addressing a variety of related issues.
First, the court noted that the United States Supreme Court has repeatedly recognized that gender stereotyping is actionable under Title VII. According to the Seventh Circuit, discrimination on the basis of sexual orientation is inherently a form of sexual stereotyping. By way of example, the court noted that if a man who is in a relationship with a woman is treated more favorably than a woman in a relationship with another woman, then that woman has been disadvantaged because of her failure to conform to the female stereotype.
The court also considered statutory construction principles and rejected Ivy Tech’s argument that the statute’s silence on the issue, as well as Congress’s failure to amend Title VII to explicitly protect “sexual orientation” indicated that the Title VII was not intended to cover sexual orientation. The court found that (1) legislative history is “notoriously malleable” and (2) a failure to amend a statute could be a result of simple legislative gridlock rather than Congressional intent. The court also found that although it was not required to defer to the EEOC, the agency’s position on sexual orientation was informative because the EEOC is “the Agency most closely associated with Title VII.” Specifically, the court noted that the EEOC’s position may have caused some congressmen and women to think that no legislation was needed to clarify the scope of Title VII because the agency was already enforcing such protections.
Finally, the court noted that the Supreme Court and federal circuits have also found that discrimination claims can be brought based on an individual’s association with a member of a protected class. As in cases protecting individuals in interracial relationships, the court found that Title VII protected individuals in homosexual relationships because the essence of the claim is that the plaintiff would not be suffering the adverse action had her sex been different.
Therefore, according to the Seventh Circuit, Title VII protects individuals from discrimination on the basis of their sexual orientation. One judge dissented from the panel’s decision, arguing that the language of Title VII was clear and that discrimination on the basis of “sex” did not also encompass sexual orientation claims.
The case is Hively v. Ivy Tech Community College of Indiana. For specific questions about this opinion, Title VII coverage, or employment-based claims in general, please contact your Dinsmore attorney.