In a groundbreaking decision, the Seventh Circuit became the first federal appellate court to hold that the protection against sex discrimination provided to employees under Title VII of the Civil Rights Act of 1964 also bars discrimination on the basis of sexual orientation. See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017). In an 8-3 decision issued after a rare hearing en banc, the Seventh Circuit looked to related Supreme Court 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," in overruling its prior decisions that found otherwise. Considering the Supreme Court's prior rulings in various gender non-conforming cases, the Seventh Circuit found that "Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing." In the majority opinion, Chief Judge Diane Wood wrote "[W]e conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination." Ivy Tech has indicated that it will not appeal the decision further to the U.S. Supreme Court, making the Seventh Circuit's decision controlling precedent for federal courts in Illinois, Indiana, and Wisconsin. The Seventh Circuit's decision follows recent decisions by the Second and Eleventh Circuits that considered similar employee discrimination claims and reached the opposite conclusion, finding sexual orientation was not a protected category under Title VII. See Christiansen v. Omnicom Group, Inc., No. 16-748 (2d Cir. Mar. 27, 2017) and Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017).
Kimberly Hively, an openly lesbian woman, was a part-time adjunct professor at Ivy Tech's campus in South Bend, Indiana when she applied for at least six open full-time positions with Ivy Tech over a five-year period. In 2014, her part-time contract was not renewed, ending her employment with Ivy Tech. Hively filed her action against Ivy Tech, raising a claim brought under Title VII, in which she alleged that she was discriminated against based on her sexual orientation. Ivy Tech's motion to dismiss her suit was granted by the lower court, based on its conclusion that Title VII does not provide protection against employment discrimination based on sexual orientation. With its decision to the contrary, the Seventh Circuit reversed the lower court decision and sent Hively's action back to the U.S. District Court for the Northern District of Indiana, allowing her claims to proceed.
Illinois, Wisconsin and Other States and Municipalities Prohibit Sexual Orientation Discrimination
The Illinois Human Rights Act, the Wisconsin Fair Employment Law, as well as local ordinances enacted by a number of municipalities throughout Illinois, Indiana and Wisconsin (including Chicago, Illinois; Indianapolis, Indiana; and Milwaukee and Madison, Wisconsin) all include prohibitions against employment discrimination based on an employee's sexual orientation. Gender identity is a similarly protected category under Illinois law and many local ordinances that prohibit employment discrimination. Private employees in these states and municipalities within the Seventh Circuit previously had the option of bringing such claims before their state or local fair employment agency. However, Indiana state law provides no similar protection for private employees, leaving employees in Indiana who were not covered by an applicable local ordinance without any option for bringing a claim based on sexual orientation discrimination prior to the Seventh Circuit's decision in Hively. Many other states and municipalities across the country also prohibit employment discrimination based on sexual orientation and/or gender identity, including states such as California, Massachusetts, New York, New Jersey, Connecticut, Delaware and Maryland, and cities such as New York City, Philadelphia, Miami, Atlanta, New Orleans, Dallas, St. Louis, Kansas City, Omaha, Detroit, and Cleveland, etc.
What This Means for Employers
Employers with operations in Illinois, Indiana, and Wisconsin should review their existing equal employment opportunity, anti-discrimination, harassment and retaliation policies and revise as necessary to ensure such protections are extended to include an employee's sexual orientation.
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