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Seventh Circuit Holds Employees May Bring Sexual Orientation Employment Discrimination Claims

The Seventh Circuit has become the first federal circuit court of appeals to rule that employees may bring sexual orientation discrimination claims under Title VII. This case directly affects state and local governments in their capacity as employers in Indiana, Illinois, and Wisconsin.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex, or national origin.”

Kimberly Hively is openly lesbian. She sued Ivy Tech Community College where she taught as a part-time, adjunct professor. She applied for at least six full-time positions between 2009 and 2014, didn’t receive any of them, and in July 2014 her part-time contract was not renewed. She believes her sexual orientation is the reason.  

The Seventh Circuit had long held that sexual orientation discrimination claims weren’t cognizable under Title VII. The court decided to revisit this conclusion “in light of developments at the Supreme Court extending over two decades.” These decisions include Obergefell v. Hodges (2015), which granted same-sex couples a constitutional right to marry.  

Hively offered two theories for why “sex discrimination” includes discrimination on the basis of sexual orientation, both of which the 8-3 en banc panel found persuasive.

First, the court considered the “comparative method” in which it asked if everything else in the situation was constant except Hively’s sex would she have been treated the same way. Hively alleged that if she had been a man romantically involved with a woman she would have been promoted and not fired. So in short she was disadvantaged because she is a woman.

Likewise, the U.S. Supreme Court has long recognized that sex stereotyping is a form of sex discrimination. “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”

Second, in Loving v. Virginia (1967)the Supreme Court held that bans on interracial marriage are unconstitutional. According to the Seventh Circuit per Loving,“[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”

Miscegenation laws were defended because both parties were barred from marrying each other. But the Supreme Court rejected that rationale. If you change the sex of one of the partners is a lesbian couple (just like if you change the race of one person in an interracial couple) “the outcome would be different.” According to the court, “[t]his reveals that the discrimination rests on distinctions drawn according to sex.”

The Supreme Court is likely to review Hively v. Ivy Tech Community College because it creates a circuit split on the meaning of a key term in Title VII. For Hively to prevail Justice Kennedy’s vote is likely critical.

This term the Supreme Court was supposed to decide whether transgender students have a right to use the bathroom consistent with their gender identity. Gloucester County School Board v. G.G. would have required the Court to interpret Title IX’s language “on the basis of sex.”

The Supreme Court sent this case back to the Fourth Circuit to rehear because President Trump’s Department of Education (DOE) pulled a “Dear Colleague” letter President Obama’s DOE wrote interpreting “on the basis of sex” to include gender identity. 

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