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Employment Law Blog

May 22nd, 2017

Seventh Circuit Court of Appeals Holds Sexual Orientation Discrimination is a Form of Sex Discrimination

Blog by Folkerth Law

On November 14, 2016, we reported that a federal court in Pennsylvania had just ruled that Title VII prohibits sexual orientation discrimination.  Sexual orientation discrimination, and LGBT rights in general, has been a hot topic in recent years. However, until our prior post on this issue, no federal court had ruled that sexual orientation discrimination in the workplace was unlawful.  Now, the Seventh Circuit Court of Appeals, covering Illinois, Indiana, and Wisconsin, agrees that discrimination on the basis of sexual orientation is a form of unlawful sex discrimination.  See Hively v. Ivy Tech Comm. College of Indiana.  853 F.3d 339 (2017).

The Hively Court acknowledged that when Congress passed Title VII decades earlier, it never contemplated that Title VII would apply to “sexual orientation” discrimination.  Rather, Title VII’s “sex” classification was intended to only prohibit discrimination against someone because they are a man or a woman.  However, Hively noted that in the years since Title VII’s inception, it has “covered far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.”   Hively noted, for example, that the U.S. Supreme Court has subsequently held that sexual harassment, including same-sex sexual harassment, is a form of unlawful “sex” discrimination.

In Hively, the Court relied, in part, on U.S. Supreme Court precedent holding that discrimination based on failing to act in a manner stereotypical of one’s sex was a form of sex discrimination.  Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).   The Seventh Circuit concluded Hively was a case of “sex stereotyping”  because Ms. Hively did not “conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”

The Seventh Circuit also relied on the “associational theory” by considering cases involving interracial marriage.  It is well-settled today that an employer violates Title VII by discriminating against an employee because the employee is married to someone of a different race.  In such instances, the discrimination against that employee is based on the employee’s own race.   Conceptually, the Seventh Circuit brought sexual orientation discrimination into mainstream Title VII jurisprudence by holding that discrimination against Ms. Hively based on the sex of her partner is discrimination because of her (i.e. Ms. Hively’s) sex.

In the Sixth Circuit, covering Ohio, Kentucky, Michigan, and Tennessee, sexual orientation discrimination is still not actionable.  Vickers v. Fairfield Medical Center, 453 F.3d 757, 763-764 (6th Cir. 2006).  Vickers concluded that discriminatory conduct aimed at an employee’s sexual orientation is not because the employee is a man or a woman, and therefore is not “because of sex.”  Id. As matters currently stand, the Sixth Circuit does not interpret federal law to prohibit employment discrimination because of sexual orientation.  However, the Hively case represents a change in attitude that is taking place as to the applicability of Title VII to sexual orientation cases.  In Ohio and many other states, that change in attitude is already present in many municipalities where sexual orientation discrimination is prohibited by municipal ordinance.

Disclaimer: This blog has been prepared by attorneys employed by this firm and is provided for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, may not be applicable or may be contrary to the laws of certain jurisdictions, is not to be acted upon as legal advice, may not be current, and is subject to change without notice.

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