Allison J. Hartnett Associate

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7th Circuit Judges Hint Workplace Bias Based on Sexual Orientation Could Be Illegal

Title VII of the Civil Rights Act currently does not prohibit discrimination based on sexual orientation. Based on statements made by judges in the Seventh Circuit Court of Appeals, however, workplace bias based on sexual orientation soon could be illegal.

In late November, oral arguments were heard in the case of Hively v. Ivy Tech Community College in the U.S. Court of Appeals for the Seventh Circuit. Hively brought suit against Ivy Tech alleging the school violated Title VII when it denied her full-time employment and promotions after she was seen kissing her girlfriend. A federal district court dismissed Hively’s lawsuit, finding the statute does not protect employees from discrimination based on sexual orientation. A three-judge panel of the Seventh Circuit upheld the district court’s ruling in July, but a decision was written by one of the judges lamenting a “paradoxical legal landscape” in which gays and lesbians “can be married on Saturday and then fired on Monday for just that act.” Lambda Legal, a nonprofit legal organization that pursues recognition of the civil rights of the LGBT community, requested rehearing by the full court, triggering the arguments on November 30.

During the course of the arguments, the judges questioned the employer heavily regarding its assertion that Title VII failed to offer protection to a lesbian employee who claimed she was discriminated against because of her sexual orientation. The judges expressed frustration with the employer’s strict interpretation of the plain language of the statute. The attorney for the employer argued that Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute. In response, the panel peppered Ivy Tech’s counsel with questions and viewpoints asserting a more expansive understanding of sex in the context of employment discrimination. The judges also pointed to the court’s authority to broaden the statute to adapt to changing social conditions.

Judge Rovner said there was a fundamental flaw in Ivy Tech’s reasoning that Title VII intended to treat heterosexuals differently than gays and lesbians with regard to workplace protections. Judge Hamilton focused his questioning on a Supreme Court decision establishing that gender stereotyping is actionable as sex discrimination. Judge Wood questioned whether Ivy Tech even believed the arguments it was making before the court. She noted that the school’s brief stated it deplores discrimination on the basis of sexual orientation, yet it continued to defend its right to engage in such discrimination. Judge Posner stated “Constantly, judges are reinterpreting statutes in ways that are not consistent with the actual thinking of the people who enacted the statute,” and therefore “Why isn’t this a perfect case for that?”

Based upon the tone of the questioning, it would come as no surprise if a majority of the court rules that Title VII bars sexual orientation discrimination. The Seventh Circuit includes Illinois, Indiana and Wisconsin, but a ruling in favor of coverage under Title VII, given the large influence of the court, would have an impact beyond just the courts within its circuit. A decision is expected in early 2017.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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