In a reversal of previous holdings on whether sexual orientation is encompassed by the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964, the Seventh Circuit Federal Court of Appeals has held in an 8-3 decision that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hively v. Ivy Tech, No. 15-720 (7th Cir. 2017).
With this ruling, the Seventh Circuit is the first U.S. Court of Appeals to allow a sexual orientation type of sex discrimination case to go forward, on the basis of the Plaintiff’s claim that she was passed over for a full time position, and not kept in her part time position allegedly because she is openly lesbian and therefore, was discriminated against on the basis of her sexual orientation. This creates a sharp split in the U.S. Circuits on whether Congress intended to include sexual orientation in the definition of sex discrimination under the Civil Right Act, strongly indicating that this issue will eventually be decided by the U.S. Supreme Court.
In his opinion, Judge Wood of the Seventh Circuit characterized the facts of the case as an instance where an individual failed to conform to a stereotypical female gender role, thus setting the stage for this debate and further proceedings in accordance with a U.S. Supreme Court case holding that sex discrimination includes sex stereotyping. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) the Court concluded that it was sex discrimination based on sex stereotyping when a woman was denied a promotion at her firm and advised that she could increase her chances of receiving the promotion, if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Hively court has now extended this analysis to cover sexual orientation claims.
Employers in the geographical area covered by the 7th Circuit (Wisconsin, Illinois, and Indiana) will want to make sure that their employment decisions comport with the new standard announced by the court this week. As for other jurisdictions, including Ohio, employers should be aware that the EEOC, the federal agency which enforces Title VII, considers sexual orientation claims covered under Title VII and can accept charges regardless of the state in which the employer is located. Employers seeking guidance on this ruling and how it may effect policy implementation may contact Matt Stokely at (937)223-1130.