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Pathway to Equality: Court Concludes Title VII Prohibits Sexual Orientation Discrimination

By: Lisanne L. Mikula

April 6, 2017

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit became the first federal appeals court to hold that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has stated a claim of sex discrimination under Title VII.

In Hively v. Ivy Tech Community College of Indiana, the plaintiff was a college professor who claimed that she was repeatedly denied full-time status—and ultimately terminated—by Ivy Tech Community College on the basis that she is a lesbian.  The trial court dismissed Professor Hively’s employment discrimination claims on the grounds that sex discrimination under Title VII does not include discrimination on the basis of sexual orientation.

A three-member panel of the Seventh Circuit affirmed the dismissal of Professor Hively’s claims, concluding that when Congress enacted Title VII in 1964, it “intended to bar discrimination against women because they are women and against men because they are men” and had in mind a more traditional meaning of the term “sex” when outlawing sex discrimination.  The panel’s decision echoed decisions by federal appellate courts throughout the United States which have consistently held that sex discrimination under Title VII does not include sexual orientation discrimination.

The Seventh Circuit agreed to reconsider the panel’s decision en banc (i.e., before the full active membership of the court), and reversed the dismissal of Professor Hively’s Title VII sex discrimination claims.  The court narrowly defined the issue before it—whether discrimination on the basis of sex includes discrimination on the basis of sexual orientation—and became the first federal appellate court to hold that it does.

Recognizing that the United States Supreme Court has not squarely ruled on the issue, the Seventh Circuit found sufficient guidance from Supreme Court precedents to conclude that while the term “sexual orientation” does not appear among the classes protected from employment discrimination under Title VII, it is already included in the term “sex”.  The Seventh Circuit observed that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B”, and the Supreme Court has defined discrimination on the basis of “sex” as prohibiting sexual harassment in the workplace (including same-sex workplace harassment), discrimination based on actuarial assumptions about a person’s longevity, and discrimination based on a person’s failure to conform to a certain set of gender stereotypes.

The Seventh Circuit noted that the fundamental inquiry in determining whether the plaintiff has been discriminated against on the basis of her sex is to question whether, if she were a man but everything else were the same—in particular, the sex or gender of the plaintiff’s partner—the employer would have failed to promote her and then fire her.  This inquiry goes to the heart of whether the employer placed her at a disadvantage because she is a woman—the quintessential definition of sex discrimination.  Further, Professor Hively’s non-heterosexual status “represents the ultimate case of failure to conform to the female stereotype” because it does not fit the traditional stereotype of a woman being sexually attracted only to men—thus falling squarely within Supreme Court precedent prohibiting discrimination against gender nonconformity.

The Hively court also viewed the employment discrimination claims before it in the context of recent Supreme Court cases addressing broader issues of discrimination on the basis of sexual orientation.  For example, the Supreme Court has rejected discrimination against persons on the basis of sexual orientation in other contexts, such as striking down a statute criminalizing homosexual intimacy between consenting adults as unconstitutional, rejecting as unconstitutional a provision in the Defense of Marriage Act that excluded a same-sex partner from the definition of “spouse” in other federal statutes, and holding that marriage equality is a fundamental liberty right protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  The Seventh Circuit particularly noted the inherent inconsistency of recognizing that a person has the fundamental right to marry a same-sex partner while allowing an employer to terminate that person’s employment because he or she has a same-sex partner.

While a number of federal district courts have arrived at the same conclusion as the Hively court, the Seventh Circuit’s conclusion that sexual orientation discrimination is prohibited under Title VII is a groundbreaking departure from the current federal appellate court landscape. Although Hively is not binding on courts in Pennsylvania, the ruling is a significant step toward nation-wide recognition of sexual orientation as a protected class under Title VII’s anti-discrimination protections and paves a likely pathway to a decision by the United States Supreme Court on this critical issue.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Please contact Lisanne L. Mikula Esquire at the Law Firm of DiOrio & Sereni, LLP at 610-565-5700 or email her at Lmikula@dioriosereni.com

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