After the United States Supreme Court's decision in
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), a person
could get married to a same-sex partner on Saturday and fired by
his or her employer on Monday. Although gay and lesbian employees
in Illinois, Wisconsin and a number of counties and cities in
Indiana are protected from discrimination based upon sexual
orientation, the question is whether a person's sexual
orientation is protected from discrimination by the federal law
known as Title VII of the Civil Rights Act of 1964. The situation
has now changed in the Seventh Circuit, covering the states of
Illinois, Indiana and Wisconsin. On April 4, 2017, the Seventh
Circuit Court of Appeals ruled that discrimination on the basis of
sexual orientation is a form of sex discrimination. In Hively
v. Ivy Tech Community College of Indiana, Case No. 15-1720
(7th Cir. 2017), Kimberly Hively alleges that her employer blocked
her applications for full-time positions and then did not renew her
part-time contract. The federal district court granted the
College's motion to dismiss the case and a three-judge panel of
the Seventh Circuit agreed. On appeal, the entire Seventh Circuit
Appellate Court reversed.
By taking this action, the Appellate Court rejected the
distinction between discrimination on the basis of sex and
discrimination on the basis of sexual orientation. By analyzing a
long line of cases issued by the United States Supreme Court, the
Appellate Court ruled that sexual orientation is a form of sex
discrimination. For example, the Supreme Court ruled that the
Constitution "protects the right of same-sex couples to
marry." The Supreme court earlier ruled that "gender
stereotyping falls within the prohibition against sex
discrimination" and, in sexual harassment cases, it
"makes no difference if the sex of the harasser is (or is not)
the same as the sex of the victim." Rather than amending Title
VII, which Congress has refused repeatedly to do, the Appellate
Court examined the "broader context of the statue that...the
legislature ...passed," noting the actions of the Supreme
Court in looking at the broader context in other cases, such as
cases involving the anti-trust laws.
Therefore, the Appellate Court ruled that "any discomfort,
disapproval, or job decision based on the fact that the [employee]
dresses differently, speaks differently, or dates or marries a
same-sex partner is a reaction purely and simply based on
sex." Such action violates Title VII. Therefore, when
employers make decisions about employees, they need to consider
whether their actions are based upon all of the employee's
protected classifications, including sexual orientation.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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