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Seventh Circuit Declines to Apply Title VII to Sexual Orientation Bias Claims

The U.S. Court of Appeals for the 7th Circuit said last week that it was bound by earlier decisions to find that Title VII, the federal civil rights law that protects employees from discrimination based on race, sex, religion and national origin, does not protect against sexual orientation discrimination.

In Hively v. Ivy Tech Community College, Kimberly Hively, a professor, claimed she was repeatedly denied a full-time position because she was a lesbian. Ivy Tech Community College argued that neither federal law nor state law in Illinois prohibits sexual orientation discrimination, and therefore Hively had no case.

The Equal Employment Opportunity Commission issued guidance in June 2015 interpreting Title VII’s prohibition on sex-based discrimination to include sexual orientation-based discrimination, and shortly after issued an administrative ruling finding the same. Hively’s case was the first time a federal appeals court has addressed the issue since the EEOC guidance and opinion were released.

A three-judge panel of 7th Circuit judges held that Hively did not have a Title VII claim, despite the EEOC’s position, because the court found the agency did not have the authority to override judicial precedent.

“Our precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination. That holding is in line with all other circuit courts to have decided or opined about the matter,” the court wrote. “Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.”

Despite an “emerging consensus that sexual orientation [discrimination] in the workplace can no longer be tolerated” the court wrote, Congress has not acted to protect employees from such bias. Given the lack of action from Congress and long-standing judicial precedent across the country, the court felt it had to find against Hively.

Interestingly, the court also noted that the EEOC’s 2015 administrative ruling specifically called out the 7th Circuit for “simply cit[ing] earlier and dated decisions without any additional analysis” to continue rejecting protection against sexual orientation discrimination. The panel said it “[took] to heart the EEOC’s criticism of [its] circuit’s lack of recent analysis on the issue.” In doing so, the court said that the issue “require[s] a fresh look.”

The 7th Circuit panel also noted that its decision “creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance and behavior,” the more likely it is that the plaintiff will have a viable Title VII claim. This is true under the U.S. Supreme Court’s decision in PriceWaterhouse v. Hopkins, which prohibited employers from discriminating against an employee based on “gender stereotypes” – for example, a female employee choosing not to wear dresses or makeup, or a male employee being soft-spoken.

Ultimately, it seems the 7th Circuit (or at least the judges on the Hively panel) would like to see Title VII extended to protect sexual orientation, but they need a higher authority to make the decision.

“Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry,” the panel wrote. “[But u]ntil the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”

The clear “writing on the wall” the 7th Circuit seeks may come via the passage of the Equality Act by Congress.  Introduced on July 23, 2015 by Congressman David Cicilline of Rhode Island, the Equality Act seeks to provide protection from discrimination on the basis of sexual orientation in employment. The Human Rights Campaign (HRC), the nation’s largest LGBT civil rights organization, reacted to the 7th Circuit decision immediately, by issuing a statement on its website emphasizing the need for the immediate passage of the Equality Act.  According to the HRC, the “Equality Act would finally guarantee explicit, permanent protections for LGBTQ people under our existing civil rights laws.”

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Emily R. Grannis, Cleveland, Squire Patton Boggs, Labor Lawyer, Employment
Associate

Emily Grannis is an associate in the firm’s Labor & Employment Group where her practice focuses on issues facing public school districts, including student discipline, contract and policy drafting, and public records matters.

Prior to joining Squire Patton Boggs, Emily was a legal fellow at the Reporters Committee for Freedom of the Press, where she wrote and advocated on questions dealing with state and federal Sunshine Laws. She also co-authored a chapter on the history of federal leaks prosecutions for the American Bar Association book...

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Associate

Shar Bahmani focuses his practice on labor and employment matters, ERISA litigation and general civil litigation. Shar’s experience includes defending employers in a wide variety of employment disputes arising under federal and state employment laws, including wrongful termination, discrimination, harassment, retaliation, leave entitlements, hostile work environment, non-competition, non-solicitation, and wage and hour cases. He has experience representing clients before federal and state courts, administrative agencies and in arbitration proceedings. Shar works with clients in mediation proceedings, as well as other alternative dispute resolution proceedings to find efficient and reasonable solutions to complex disputes.

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