On April 4, 2017 the U.S. Court of Appeals for the Seventh
Circuit ruled in Hively v. Ivy Tech Community College of Indiana
(Docket No. 15-1720) that Title VII of the Civil Rights Act of 1964
prohibits discrimination on the basis of sexual orientation. The
court's decision is significant because while the Act expressly
forbids employers from discriminating on the basis of race, color,
religion, sex, or nation origin, it does not specifically mention
Kimberly Hively, a former part-time professor, brought a
discrimination suit against Ivy Tech Community College of Indiana
alleging that she was denied a full-time position because she is a
lesbian. The district court dismissed her complaint finding that
sexual orientation was not a protected class under the Act, as it
was not contemplated by Congress when it passed Title VII. Last
year, a three-judge panel of the Seventh Circuit affirmed the
district court's ruling, finding that Ms. Hively did not have
standing to bring suit under Title VII because sexual orientation
is not a class protected by the Civil Rights Act. In response, Ms.
Hively requested a hearing with the entire panel of the Seventh
In an 8 to 3 ruling in favor of Ms. Hively that overturned its
previous decision, the Seventh Circuit found "it would require
considerable calisthenics to remove the 'sex' from
orientation." Therefore, the court held that
"discrimination on the basis of sexual orientation is a form
of sex discrimination." In its opinion, the court explained
that its ruling was based upon previous United States Supreme Court
decisions involving employment discrimination and LGBT employee
rights, "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."
Though the Equal Employment Opportunity Commission has
maintained the position that LGBT employees are protected from
discrimination by Title VII, this is the first ruling of its kind
from a federal appellate court. Prior to the Seventh Circuit's
decision, every federal appellate court to address the issue of
whether LGBT employees are entitled to protections under the Civil
Rights Act found that they are not. For example, last week in
Christiansen v Omnicom Group, Inc., a panel of the U. S. Court of
Appeals for the Second Circuit ruled against an employee in Georgia
who alleged that his manager discriminated against him by
repeatedly taunting him because he is gay. Last month in Evans v.
Georgia Regional Hospital, a three-judge panel in the U.S. Appeals
Court for the 11th Circuit Court upheld the dismissal of a
discrimination case brought by a female employee who claimed that
she was forced out of her position as a security guard because she
is a lesbian and did not "carry herself in a traditional woman
Although Congress has consistently rejected amending Title VII
to include sexual orientation as a protected class, twenty-two
states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa,
Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire,
New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont,
Washington, and Wisconsin) plus Washington D.C. and Puerto Rico,
have enacted laws prohibiting workplace discrimination based on
sexual orientation. Unfortunately, the enactment of state laws
prohibiting discrimination on the basis of sexual orientation does
not address or eliminate the issue on the federal level. Several
federal courts are presently wrestling with the issue of the
application of the Civil Rights Act to sexual orientation
discrimination claims. The ongoing struggle with the application of
the Civil Rights Act to sexual orientation discrimination claims
will likely lead to the issue being addressed by the Supreme Court.
Until the Supreme Court weighs in, employers should consult with
their counsel to ensure that their actions remain in compliance
with both state and federal laws and regulations.
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.
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