Because of Sex Under Title VIIIn April 2017, the Seventh Circuit Court of Appeals issued a decision in the case of Hively v. Ivy Tech Community College that dramatically ramps up the debate on whether Federal employment discrimination laws cover discrimination based on sexual orientation. The Seventh Circuit (which includes Illinois, Indiana, and Wisconsin) issued the first Federal decision holding that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation.
In this case, Kimberly Hively, an adjunct professor at Ivy Tech, unsuccessfully applied for a full-time professor position on six separate occasions between 2009 and 2014. Hively alleged that Ivy Tech denied her full-time employment because of her sexual orientation in violation of Title VII. After a three judge panel initially ruled for the employer, the Seventh Circuit held an en banc rehearing , meaning that every judge in the Circuit participated and issued an opinion.
Even though the words "sexual orientation" do not appear in Title VII, the Court reasoned that sexual orientation discrimination is covered under Title VII's prohibition on discrimination based on sex. The Seventh Circuit relied on the seminal 1989 Supreme Court case of Price Waterhouse v. Hopkins, which established that discrimination based on failure to conform to gender stereotypes is discrimination based on sex. In its 8-3 decision, the Court reasoned that sexual orientation discrimination is prohibited sex stereotyping discrimination because the employee suffered discrimination due to the fact that she did not conform to the stereotype that women are only romantically involved with men. In other words, if Hively was a man in a relationship with a woman, she would have received the full time professor position. However, because she was a woman in a relationship with a woman, she suffered actionable sex discrimination under Title VII.
The Hively decision is unlikely to be the final word on this issue. Obviously, employers in the Seventh Circuit (which includes Illinois, Indiana, and Wisconsin) cannot discriminate based on sexual orientation. However, in early 2017, two other Federal Circuit Courts in the Second Circuit (which includes Connecticut, New York, and Vermont) and Eleventh Circuit (which includes Alabama, Florida, and Georgia) reached the opposite conclusion in similar cases. This resulting "circuit split" creates an uneven interpretation of Title VII, and the Supreme Court may ultimately rule on the issue if it grants a writ of certiorari.
Until a uniform interpretation of Title VII is established, employers should not ignore the Hively decision, even if they are outside of the Seventh Circuit. First, the Equal Employment Opportunity Commission (the Federal agency that enforces Title VII) views sexual orientation discrimination as sex discrimination. Second, discrimination based on gender identity, which can accompany allegations of sexual orientation discrimination, remains an actionable claim under Title VII.