Sexual Orientation Discrimination Claim Allowed Under Title VII

By Scott Seidman

The Seventh Circuit Becomes the First Federal Court of Appeals to Recognize a Claim Under Title VII for Sexual Orientation Discrimination

For more than 30 years, the federal Circuit Courts of Appeal have uniformly ruled that Title VII's prohibitions against discrimination based on "sex" do not cover claims for discrimination based on "sexual orientation." That has now changed. Last week, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) became the first circuit court of appeals to recognize that discrimination based on sexual orientation is indistinguishable from discrimination based on sex, in Hively v. Ivy Tech Community College of Indiana.

Hively, an openly lesbian part-time, adjunct professor at Ivy Tech, failed in her application for at least six full-time positions between 2009 and 2014. When Ivy Tech refused to renew her part-time contract in July 2014, Hively filed a lawsuit claiming that her efforts at promotion were spurned because of her sexual orientation. Relying on a line of Seventh Circuit precedents holding that Title VII does not cover sexual orientation discrimination, the trial court dismissed the case, and a three-judge panel of the Seventh Circuit affirmed. However, the Seventh Circuit took the unusual step of granting a hearing by the full Court, known as an en banc hearing.

The full Seventh Circuit reexamined the Court's prior holdings in light of the EEOC's changed position expressed in Baldwin v. Foxx that sexual orientation discrimination is the same as discrimination based on sex, and in light of Supreme Court holdings in cases such as Price Waterhouse v. Hopkins (recognizing a sex discrimination claim based on sexual stereotyping), Oncale v. Sundowner Offshore Servs., Inc. (recognizing a claim for same-sex sex discrimination), and Obergefell v. Hodges (holding that state laws forbidding same-sex marriage violate the Equal Protection Clause), as well as the long-standing Supreme Court decision in Loving v. Virginia (striking down miscegenation laws as unconstitutional based on an associational theory).

In an 8-3 decision, the en banc Court held that discrimination based on sexual orientation constitutes discrimination based on sex. Relying on Price Waterhouse, the Court found that discrimination based on sexual orientation is the ultimate form of sexual stereotyping because it is based on the belief that women should have sexual relations only with men. The Court further found that using a comparator methodology shows that, if Hively's allegations are credited, she would not have been denied full-time status had she been a man, because men who have sexual relations with women are not disfavored the way women who have sexual relations with women are. The Court also found that Hively had an associational claim under Loving.

Ivy Tech has announced that it will not seek review by the Supreme Court but will instead defend on the merits. The College claims that it has long had policies against discrimination based on sexual orientation and that it had valid reasons for its actions. Because of the clear conflict among the circuits on this issue, there is a good chance the Supreme Court would have heard the case.

It will be interesting to see whether other circuits follow the Seventh Circuit's lead. For now, the law in the Ninth Circuit is that Title VII does not cover sexual orientation discrimination. See, e.g., Rene v. MGM Grand Hotel Inc., 305 F.3d 1061 (9th Cir. 2002). However, it would not be surprising to see the Ninth Circuit reconsider this position in an en banc hearing in an appropriate case, just as the Seventh Circuit has done. Keep in mind that state law in Oregon already prohibits discrimination based on sexual orientation. We will keep you posted on any further federal court developments.

This client update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please an attorney in our Labor & Employment practice group, or the attorney with whom you normally consult.

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