June 13, 2017

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Federal 7th Circuit Court Extends Anti-Discrimination Workplace Protection to Sexual Orientation in Landmark Decision

On Tuesday, April 4, 2017, the U.S. Court of Appeals for the 7th Circuit ruled in Hively v. Ivy Tech Community College of Indiana1 that employment discrimination on the basis of sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).Title VII, on its face, makes it illegal for employers to discriminate on the basis of a person’s “race, color, religion, sex, or national origin.”3 In 2015, the U.S. Equal Employment Opportunity Commission (the “EEOC”) asserted that Title VII also covers sexual orientation discrimination. However, none of the federal courts of appeal had adopted that position. In fact, the 7th Circuit ruled in a previous case, Hamner v. St. Vincent Hospital & Health Care Center, Inc., in 2000 that Title VII did not apply to harassment based on sexual orientation. Therefore, this decision marks a stark departure from its precedent. The U.S. Supreme Court has yet to rule on this precise issue.

In overruling its own precedent, the 7th Circuit reasoned that “discrimination on the basis of sexual orientation is a form of sex discrimination,” and found that it is “actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex … .” This ruling represents a major victory for LGBTQ employees and advocates, but will likely go to the Supreme Court for review.

The 7th Circuit has jurisdiction over only Illinois, Indiana and Wisconsin, so employers in these states should review their company’s discrimination, harassment and retaliation policies and procedures to ensure their compliance with this recent decision. Employers in other states should keep in mind that many state and local laws already prohibit sexual orientation discrimination. Therefore, employers of all states should stay vigilant in reviewing and updating their policies, procedures and training materials, ensuring compliance with any applicable anti-discrimination laws, and monitoring new legal developments.


1. Read the full text of the opinion at http://media.ca7.uscourts.gov.

2. 42 U.S.C. §§ 2000e–e-17.

3. See 42 U.S.C.A. § 2000e-2 (b).

© 2017 Andrews Kurth Kenyon LLP

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Marc D. Katz, Labor Law Attorney, Andrews Kurth Law Firm
Partner

Marc is the Chair of the firm's Labor & Employment section and focuses his practice on management-side labor and employment litigation and counseling. His experience includes drafting, negotiating and litigating non-competition and confidentiality agreements, trade secret litigation, state and federal employment discrimination cases, wage and hour issues, medical leave, FMLA and ADA compliance issues, class action employment cases, wrongful discharge, and defamation litigation.

Marc develops workplace policies and advises corporate clients on mass layoffs, reductions in force,...

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Isabel Crosby
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Isabel has experience representing employers as the first or second chair litigator in both state and federal courts and in administrative actions before the Department of Labor’s Office of Administrative Law Judges, the Occupational Safety & Health Review Commission, the Texas Education Agency, and the National Labor Relations Board.

Her practice focuses on negotiating settlements in anticipation of and during litigation and advising and counseling management on labor and employment issues, including those arising under Title VII, the ADA, the FLSA, the FMLA, OSHA, and the NLRA. Isabel also represents management at grievance hearings, board of trustee hearings, and internal meetings and has drafted responses to the EEOC and other government agencies. In addition, she provides management training on topics including workplace violence, the ADA, rightful discharges, the electronic workplace, wellness programs, effective documentation, and collective bargaining agreement compliance.

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Britney J.P. Prince, Andrews Kurth, Jury Trial Lawyer, Dallas, Legal Advocacy Attorney
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Britney is an Associate in the Litigation section of the firm’s Dallas office. For more than a century, Andrews Kurth lawyers have combined legal skill, business experience and aggressive advocacy to achieve our clients’ litigation objectives. Backed by a proven record of success at trial, our lawyers are respected for their professional demeanor, their skills in the courtroom and their integrity as advocates. A successful litigation practice is not only about dramatic victories at trial, however; its underpinnings are derived from a total commitment to obtaining the...

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