Appellate Court Holds That Sexual Orientation Not Covered by Title VII

Kollman & Saucier
Kollman & Saucier

Around this time last year, I wrote about the Foxx case, an EEOC decision holding that sexual orientation discrimination is a violation of Title VII.  The ruling– only binding on federal agencies– left us wondering whether federal courts might soon follow suit.  “Not yet,” said the Seventh Circuit last week in the first appellate decision to address the issue since Foxx.  (Hivley v. Ivy Tech Cmty. Coll., No. 15-1720 (7/28/16).) Sexual orientation bias remains beyond the scope of Title VII, it held, at least until Congress or the Supreme Court tells us otherwise.

Acknowledging that Foxx makes it difficult to rationalize the denial of Title VII sexual orientation claims when nearly indistinguishable gender non-conformity claims are permitted under the same statue, the court apologetically explained that it was without authority to create new law in contravention of its own precedent. It then highlighted failures by Congress to grant protections by amending federal laws, and baited the Supreme Court to “step in and tell us so” if its interpretation of the law was wrong.

The court emphasized that society will not continue to condone a legal structure that permits discrimination based on who we love, date or marry; that the EEOC does not condone it; that other circuits have stated they don’t condone it; and that the Seventh Circuit “undoubtedly does not condone it.”  “Perhaps the writing is on the wall,” the court wrote, but “the writing on the wall is not enough. … Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”



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