United States: Employment, Labor & Benefits Update - August 2016

Last Updated: August 15 2016
Article by Nancy E. Sasamoto and Alan M. Kaplan

The Seventh Circuit Affirms: No Federal Protection from Sexual Orientation Discrimination Without Action by the U.S. Supreme Court or Congress

By Nancy Sasamoto

On July 28, 2016, the United States Court of Appeals for the Seventh Circuit, unequivocally reaffirmed that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. In Hively v. Ivy Tech Community College, the Court made clear that, while it does not condone employment discrimination based solely on who an employee dates, loves or marries, Title VII nevertheless provides no protection for sexual orientation discrimination.

In Hively, Plaintiff Kimberly Hively filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), claiming that she had been blocked from full-time employment without just cause on the basis of her sexual orientation. Hively had begun teaching as a part-time adjunct professor at Ivy Tech Community College in 2002. According to Hively, she had the necessary qualifications for a full-time employment and had never received a negative evaluation, but the college refused even to interview her for any of the 6 full-time positions for which she applied between 2009 and 2014. Moreover, the college did not renew her part-time employment contract in July 2014. Hively alleged that the college's actions constituted discrimination on the basis of sexual orientation. After exhausting her administrative remedies at the EEOC, Hively filed her Title VII claim in the U.S. District Court. The college's defense was that Title VII does not apply to claims of sexual orientation discrimination. The District Court agreed with the college and dismissed Hively's case.

Rather than make short shrift in affirming the dismissal of Hively's case, the Court felt that an in-depth analysis was warranted in light of the EEOC's 2015 decision in Baldwin v. Foxx, where it concluded sexual orientation is inherently a "sex-based consideration." The EEOC came to the conclusion for three primary reasons. First, it found that sexual orientation discrimination necessarily entails treating an employee less favorably because of the employee's sex. Second, it constitutes a form of associational discrimination on the basis of sex as an employer orientation discrimination necessarily entails treating an employee less favorably because of the employee's sex. Second, it constitutes a form of associational discrimination on the basis of sex as an employer discriminates against lesbian, gay or bisexual employees based on who they date or marry. Third, sexual orientation discrimination is a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances.

The Seventh Circuit began its analysis by reviewing the U.S. Supreme Court's rationale in the 1989 case of Price Waterhouse v. Hopkins, where the Supreme Court declared that Title VII protects employees who fail to comply with typical gender stereotypes. In Price Waterhouse, when Plaintiff Ann Hopkins failed to make partner in the accounting firm, the partners advised her that her chances would be improved the next time if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court stated that this type of gender stereotyping constituted discrimination on the basis of sex in violation of Title VII.

Following Price Waterhouse, gay, lesbian, bisexual and transgender employees began to frame their Title VII sex discrimination claims in terms of discrimination based on gender non-conformity and not sexual orientation. For the last 25 years, courts have struggled to distinguish between gender norm discrimination, which is prohibited, and sexual orientation discrimination, which is not cognizable under Title VII. In short, the Seventh Circuit recognized that the distinction between gender non-conformity claims and sexual orientation claims had "created an odd state of affairs in the law in which Title VII protects gay, lesbian and bisexual people," but only to the extent that they meet society's stereotypical norms about how gay men or lesbians look or act (i.e. not in conformance with usual gender stereotypes or norms). On the other hand, gay or bisexual people who do conform to gender stereotyped norms in dress and mannerisms usually lose their claims for sex discrimination.

However, the Seventh Circuit, recounting the various opportunities that the Supreme Court has had to interpret Title VII as prohibiting sexual orientation discrimination and the many chances that Congress has had to amend Title VII to expressly prohibit such discrimination, noted that neither the Supreme Court nor Congress had taken any action to expand the interpretation of or amend Title VII to cover discrimination on the basis of sexual orientation. Reluctantly, the Court concluded that, while the writing may be on the wall for change in that our society cannot condone a legal structure where employees can be harassed, demeaned, fired or otherwise discriminated against solely based on who they date, love or marry, writing on a wall is not enough, and Title VII does not apply to claims of sexual orientation discrimination like those alleged by Hively.

Employers should bear in mind, as the Seventh Circuit noted, that, although Title VII may not provide protection against discrimination on the basis of sexual orientation, employees may have protection under various state and local antidiscrimination laws. In Illinois, the Illinois Human Rights Act prevents sexual orientation discrimination. Both the Cook County Human Rights and City of Chicago Human Rights Ordinances prohibit discrimination based on sexual orientation and gender identity. However, the Seventh Circuit noted that more than half of the states in the U.S. do not have such state protections.

Disabilities – The Direct Threat Defense: A Tool in the Employer's Tool Box

By Alan M. Kaplan

The Problem:

Jack is a crane operator who works for Top 10 Construction, hoisting concrete panels that weigh several tons. A rigger on the ground helps him load the panels, and several other workers help him position them. During a break, Jack appears to have become light-headed, has to sit down abruptly, and seems to have some difficulty catching his breath. In response to a question from his supervisor about whether he is feeling all right, Jack says that this has happened to him a few times during the past several months, but he does not know why.

Could Top 10 ask Jack about his medical condition? Can Jack perform the essential functions of the job? Should Top 10 terminate Jack? If Top 10 terminates Jack, and Jack sues Top 10, claiming he was terminated because of a disability or a perceived disability, does Top 10 have a defense?

This scenario is taken from the EEOC's Enforcement Guidance on Disability-Related Inquiries, published in 2000 and available on the EEOC's website. In the Guidance, the EEOC states that employers may make disability-related inquiries, including requiring employees to participate in medical examinations. These inquiries must be job related and consistent with business necessity. An employer may make the inquiry when the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."

Additionally, as recently explained by the Seventh Circuit Court of Appeals in Felix v. Wis. DOT, 2016 U.S. App. LEXIS 12462 (7th Cir. July 6, 2016), an employer may be protected against a former employee's wrongful termination suit where the employee poses a "direct threat" to workplace safety. In Felix, the Court explained that there may be instances in which an employee may pose a "direct threat" to the health or safety of himself or other individuals in the workplace. A "direct threat" occurs when there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." To determine whether an employee is a direct threat to himself and/or others, an employer must undertake an "an individualized assessment, based on reasonable medical judgment, of an employee's present ability to safely perform the essential functions of his job. Some of the factors include (1) the duration of the risk posed by the employee's condition; (2) the nature and severity of the potential harm that might result; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm."

The Solution:

The EEOC states that an employer may require its employee to have a medical examination to determine if he can perform the essential functions of his job. The examination, however, must be job related and consistent with business necessity.

Here, Top 10 has objective evidence that creates a reasonable belief that Jack may pose a "direct threat" to himself or others while operating the crane. The evidence is his behaviors and his statement to the supervisor. Accordingly, Top 10 may require Jack to obtain a medical examination from Jack's doctor or medical provider. To ensure that the medical examination is job related, Top 10 should give Jack his job description to show to his doctor or other medical provider. In addition, Top 10 may require documentation from Jack's doctor and then determine whether Jack can perform the essential functions of his job with or without a reasonable accommodation. If Top 10 chooses to terminate Jack because it believes that Jack poses a "direct threat" to himself or others at work, Top 10 may be protected by the "direct threat" defense as explained in Felix v. Wisconsin.

However, Top 10 may not have a job description, or, even if Top 10 had a job description, the job description may not list the essential functions and the physical requirements of the job. A job description that lists the essential functions and requirements of the job is important because, as explained previously, any medical inquiry examination of an employee needs to be job-related and consistent with business necessity. Therefore, Top 10, like all employers, needs to draft and implement an American With Disabilities Program. The program should include policies adopting the American With Disabilities Act and implementing the employer's obligation to provide reasonable accommodations to those qualified individuals with a disability. The program should also include the proper documentation, including job descriptions which list the essential functions and physical requirements of the job. The proper documentation should also include a document the employee should give to his or her doctor. That document could list the physical requirements and ask the doctor whether the employee is able to perform those duties or if the employee needs an accommodation. A "Functional Capacity Examination ("FCE") form" fulfills this part of the program. Finally, the program needs to set forth the procedures for analyzing the information in the FCE form and determining first, whether the employee is able to perform the essential functions of his job with or without a reasonable accommodation and, second, the nature of the employee's continued status as an employee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.