April 7, 2017
In a landmark decision, the United States Court of Appeals for the Seventh Circuit recently held in Hively v. Ivy Tech Community College of Indiana that workplace discrimination based on an employee’s sexual orientation is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964.
Title VII, a keystone anti-discrimination statute, makes it unlawful for an employer to discriminate on the basis of an employee’s race, color, religion, sex, or national origin. Since the statute’s inception, courts have routinely interpreted Title VII to exclude sexual orientation from its purview. Therefore, prior to the court’s ruling in Hively, an employee who was discriminated against because of his or her sexual orientation was denied relief under Title VII.
Hively, who openly identifies as a lesbian, worked as an adjunct professor at Ivy Tech Community College from 2000-2014. During her tenure, Hively applied for at least six full-time positions but was unsuccessful in securing full-time employment. In July 2014, Ivy Tech chose not to renew her part-time contract. Believing that she was denied full-time employment because of her sexual orientation, Hively filed suit under Title VII in federal court in Indiana. The district court dismissed Hively’s claims on the grounds that sexual orientation is not a protected class under Title VII. Hively appealed to the Seventh Circuit.
The Seventh Circuit, sitting en banc, addressed whether Title VII’s protection against sex discrimination encompasses discriminatory acts based on an employee’s sexual orientation – a question the court considered to be a matter of statutory interpretation. In an 8-3 decision, the court concluded 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.”
The court’s first basis for concluding that sexual orientation discrimination is a form of sex discrimination centers on the theory of gender stereotyping. Chief Judge Diane Wood explained that, in today’s society where heterosexual relationships are viewed as the “norm,” Hively’s status as a lesbian represents a failure to conform to the female stereotype (e.g., a woman should date only a man) and discrimination based on such gender stereotyping is sex discrimination prohibited under Title VII. Judge Wood, who likened Hively’s situation to previous Supreme Court cases wherein female employees suffered sex discrimination for being “too masculine” by not wearing makeup or jewelry, stated, “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
The court’s second basis for concluding that sexual orientation discrimination is a form of sex discrimination is the theory of freedom of association. Hively’s right to intimately associate with a woman is protected under Title VII because Title VII prohibits discrimination on the basis of an employee’s association with someone of a particular sex, race, color, religion, or national origin.
The Seventh Circuit is the first federal appellate court to extend Title VII’s protections to discrimination based on sexual orientation. As of now, its decision is limited to the Seventh Circuit (i.e., Indiana, Illinois, and Wisconsin). However, the decision has created a split among the circuits and, given the current social and cultural climate, could likely be an issue that makes its way to the Supreme Court for final resolution.
Sheri M. Flannery is admitted to practice in Pennsylvania and New Jersey. She may be reached at 610-408-2030, or at firstname.lastname@example.org.
 2017 U.S. App. LEXIS 5839 (7th Cir. Apr. 4, 2017)