Seventh Circuit Holds Sexual Orientation Bias in the Workplace is Prohibited Under Federal Law

Kollman & Saucier
Kollman & Saucier
04/06/2017

This week the Seventh Circuit became the first federal appellate court to hold Title VII protects employees from discrimination in the workplace based on sexual orientation.  Hivley v. Ivy Tech Comt’y Coll. of Ind., No. 15-1720 (7th Cir. 4/4/17).  In this case, plaintiff Hivley worked as a part-time professor at Ivy Tech Community College located in Indiana.  After being denied hire for several full-time positions, she filed an EEOC charge based on sexual orientation in 2013.  The following year, her contract was not renewed.

After exhausting administrative requirements, Hivley sued Ivy Tech under Title VII claiming discrimination based on sexual orientation.  Her claim was dismissed at the lowest level, a decision affirmed by a three judge panel of the Seventh Circuit.  Both courts declined to stray from circuit precedent holding sexual orientation is not sex discrimination, a status protected under Title VII.  Nevertheless, recognizing “the importance of the issue” and “the power of the full court to overrule earlier decisions,” a majority of Seventh Circuit judges voted to rehear the case en banc.

In an 8-3 decision, the full court bucked a trend set by other appellate courts to recently address the issue, overruling circuit precedent that denied protections to LGBT workers.  Chief Judge Wood wrote that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” are enough to persuade the court that “the time has come to overrule [] previous cases that have endeavored to find and observe that line.”

The dissent however claimed that the majority abused its judicial powers by circumventing the legislative process.  “[The Court],” it said, is “not authorized to infuse [] text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.”

All eyes will now be on the Eleventh Circuit where a plaintiff is pursuing a full hearing following the court’s three panel decision that Title VII does not protect against sexual orientation bias.  Evans v. Georgia Regional Hospital (11th Cir. 3/10/17).

Meanwhile, employers in all jurisdictions should continue to ensure prohibition against sexual orientation discrimination in the workplace.  Regardless of what happens at the appellate level (or beyond), the EEOC is clear on its position that such bias is unlawful.  Moreover, many state and local anti-discrimination laws expressly prohibit discrimination on the basis of sexual orientation.

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