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Federal Appeals Court Rules Sexual Orientation Is Protected Under Title VII of the Civil Rights Act of 1964

May 02, 2017
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By John W. Hofstetter and Katherine R. Basch

In an 8-3 opinion, the full panel of the United States Court of Appeals for the Seventh Circuit ruled that Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from discrimination on the basis of sexual orientation. This is the first federal court of appeals to rule that sexual orientation is a protected classification under Title VII.

The case, Hively v. Ivy Tech Community College of Indiana, involved a South Bend, Indiana professor, who alleged that she was denied promotions and ultimately fired from the college where she worked because she was a lesbian.

Hively sued her employer under Title VII, which prohibits workplace discrimination “because of sex.” The trial court dismissed Hively’s complaint, citing the longstanding precedent that “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination under Title VII.”

The Seventh Circuit reversed the district court’s judgment, finding that “it would require considerable calisthenics to remove ‘sex’ from orientation.” Thus, the court held that “discrimination on the basis of sexual orientation is a form of sex discrimination.” The court relied heavily on previous Supreme Court decisions regarding employment discrimination, “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.”

Pending a potential appeal to the Supreme Court of the United States, this opinion keeps civil rights law in a state of flux. The Hively decision now expressly prohibits sexual-orientation discrimination by employers in the Seventh Circuit—the states of Illinois, Indiana and Wisconsin. The state of Title VII remains uncertain throughout the rest of the country, however, including in Ohio. Furthermore, the federal Equal Employment Opportunity Commission (EEOC) has been enforcing Title VII to prohibit sexual orientation discrimination on a nationwide basis, under the same principles as the Hively decision, since at least 2013.

Given the current state of the law, including an evolving patchwork of state and municipal LGBT-antidiscrimination laws, employers should consult with counsel to review their discrimination and harassment policies, and other personnel policies and procedures, and consider adding expanded protections to ensure that they comply with all applicable laws. Please feel free to contact Katie Basch, John Hofstetter, or the K|W|W attorney you usually work with should you have any questions or if you would like assistance in reviewing and/or modifying your existing discrimination and harassment policies.