Seventh Circuit Expands Sex Discrimination Protections Under Title VII to Include Sexual Orientation

May 9, 2017

Last month in Hively v. Ivy Tech Community College of Ind., 853 F.3d 339 (7th Cir. 2017), the Seventh Circuit Court of Appeals, sitting en banc, found that discrimination on the basis of sexual orientation was a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. This is a dramatic departure from last year, where a 3-judge panel in the same case ruled that sexual orientation was not a protected class under Title VII.

Hively, an openly lesbian adjunct professor at Ivy Tech Community College, applied for six full-time positions between 2009 and 2014. In 2014, her adjunct contract was not renewed. Believing that she was being discriminated against for her sexual orientation, she filed a complaint with the Equal Employment Opportunity Commission (EEOC). She received a right-to-sue letter, and filed suit pro se against the College. The College successfully moved to dismiss her claim because she was not a member of a protected class under Title VII. Hively appealed, and in 2016, a Seventh Circuit panel upheld the District Court’s dismissal of her claim. In reviewing the case en banc before the full court, the Seventh Circuit noted that the Supreme Court had expanded the rights of homosexual and gender-nonconforming persons in other contexts and vacated the 2016 decision.

The Court rejected the College’s argument that Congress’ prior failed attempts to add sexual orientation into the text of Title VII meant that Congress did not intend to include one’s sexual orientation as a subset of his or her sex. The Court also noted (but did not rely upon) that the EEOC’s position taken in 2015, discriminating on the basis of sexual orientation is considered sex discrimination. The Seventh Circuit Court relied on the Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (prohibiting same-sex harassment) to hold that Congress’ original intent could not anticipate atypical applications of the statute to redress similar discriminatory conduct. The Court also relied on prior Supreme Court rulings which hold that employers may not discriminate when an employee does not conform to his or her gender stereotype. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The Seventh Circuit Court also adopted the association theory, holding that Hively could not be discriminated against because she intimately associates with a lesbian partner, just as Loving v. Virginia, 388 U.S. 1 (1967), and its progeny prohibit discrimination against interracial couples. The Court further found that the Supreme Court has expanded the rights of homosexual persons since the turn of the century. The Court acknowledged that the decision is against the weight of authority and its sister Circuits on the issue. Further, the Court made only the narrow finding that someone who alleges employment discrimination on the basis of sexual orientation has alleged sex discrimination under Title VII.

Notably, this sets up a Circuit-split in that the Seventh Circuit now stands alone in recognizing sexual orientation as sex discrimination. Ivy Tech indicated in statement that it did not intend to seek certiorari to the Supreme Court. This case is an important sea change in the area of employment discrimination in the Seventh Circuit, and one should expect similar claims to follow until the issue reaches the Supreme Court.

Hively v. Ivy Tech Community College of Ind., 853 F.3d 339 (7th Cir. 2017)

Leave a Reply

*