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Landmark Seventh Circuit Decision Expands Title VII Protections To Sexual Orientation

May 2017
Naureen Amjad


On April 4, 2017, the United States Court of Appeals for the Seventh Circuit issued a landmark decision, Hively v. Ivy Tech Community College, in which it held that Title VII prohibits discrimination based upon sexual orientation.  By so holding, the Seventh Circuit reversed its own precedent and became the first federal appellate court to expand Title VII's protected classes to include sexual orientation.

Title VII prohibits employers from discriminating against an individual based upon his or her race, color, religion, sex, or national origin. Title VII makes it unlawful for an employer to take an adverse employment action, such as termination, suspension or refusal to hire, based upon one of these protected classes.

In the past, many lawsuits alleging sexual orientation discrimination under Title VII have been dismissed (including by the Seventh Circuit) on the grounds that Title VII did not encompass sexual orientation as a protected class. More recently, however, understanding of sex discrimination has been expanded to encompass sex-based assumptions about sexuality.

In Hively, the plaintiff was an adjunct professor at a community college in Indiana.  She brought a federal lawsuit against the community college alleging that she was passed over for a number of full-time professor positions, in addition to her adjunct contract not being renewed, because of her sexual orientation as a lesbian.  The United States District Court for the Northern District of Indiana dismissed Hively's pro se complaint on Rule 12(b)(6) grounds for failure to state a claim, finding that sexual orientation was not a protected class under Title VII.

On appeal, the Seventh Circuit reversed the decision of the lower court. In doing so, the Seventh Court found that Hively's Title VII claim was essentially one for gender stereotyping, which is a protected class under Title VII, and that Hively was alleging discrimination on the basis of her association with a woman, which is also covered under Title VII.  The Seventh Circuit borrowed from Supreme Court precedent in finding that Ivy Tech Community College had discriminated against Hively for failing to meet her sexuality stereotype as a female.

The Hively decision has created a circuit split which may eventually require resolution by the United States Supreme Court.  Until that time, employers with 15 or more employees in Illinois, Indiana and Wisconsin, may wish to revisit their handbooks, manuals and policies to ensure compliance with the Seventh Circuit's decision.  Because many state and/or local laws, such as the Illinois Human Rights Act, already prohibit discrimination based upon sexual orientation, it is likely that employers covered by such laws already have the pertinent language in their handbooks, manuals and policies, although, consultation with an attorney is always a recommended practice to ensure compliance with new court decisions on employment law.

For more information or questions specific to your workforce, please contact Naureen Amjad, a Partner and Leader of Pedersen & Houpt’s Employment Practice Group, at 312.261.2273 or at namjad@pedersenhoupt.com.