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Sexual orientation deserves Title VII protections: 7th Circuit

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In a ground-breaking ruling, an en banc 7th U.S. Circuit Court of Appeals in Chicago held Tuesday that sexual orientation is protected under Title VII of the Civil Rights Act of 1964.

With the 7th Circuit’s 8-3 ruling in Kimberly Hively v. Ivy Tech Community College of Indiana creating a circuit split, it is now likely the issue will eventually be considered by the U.S. Supreme Court.

But as the law now stands, employers within the 7th Circuit, which includes Illinois, Wisconsin and Indiana, are prohibited from discriminating on the basis of sexual orientation.

Ms. Hively, a lesbian instructor, claimed she had been rejected for six full-time positions between 2009 and 2014 by Valparaiso, Indiana-based Ivy Tech, and then in July 2014 her part-time contract was not renewed. She filed suit, charging dissemination under Title VII. 

In July 28, 2016, a three-judge panel of the 7th Circuit said it was obligated to affirm a ruling by the U.S. District Court in South Bend, Indiana, that Ms. Hively could not successfully make a claim for sexual orientation discrimination under Title VII because it was beyond the statute’s scope. 

Then, in what was described as a rare move, in October the 7th Circuit agreed to vacate that ruling and rehear the case en banc.

The majority ruling Tuesday points to the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges, in which it recognized same-sex couples’ right to marry. Especially since that ruling, says the majority opinion, “bizarre results ensue from the current regime.”

Amending Title VII to add a new protected category obviously “lies beyond our power,” says the ruling. “We must decide what it means to discriminate on the basis of sex, and in particular whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence,” says the ruling.

The 7th Circuit cites the U.S. Supreme Court’s 1989 ruling in Price Waterhouse vs. Hopkins, which held a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred; and its 1998 ruling in Oncale v. Sundowner, in which it held that sexual harassment discrimination charges can be made when the plaintiff and defendant are of the same sex.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” said the opinion, in overturning the lower court ruling and remanding the case for further proceedings. There were also two concurring opinions in the case.

The dissenting opinion states: “The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion … The result is a statutory amendment courtesy of unelected judges.”

Ivy Tech College said in a statement that it does not plan to appeal the ruling to the U.S. Supreme Court. “The College denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court,” the statement said.

The majority ruling “focused on two of the theories the (Equal Employment Opportunity Commission) has been espousing, that discrimination is based on sexual orientation because it is based on sex stereotypes,” and that Title VII covers sexual orientation discrimination based on associational discrimination, which is discrimination based on the sex with whom someone associates, said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh.

The majority ruling in the case “talked about giving a fresh new look to the statute, and seemed to be adopting the EEOC’s positon that changing times require changing views of the statute,” said Richard B. Cohen, an attorney with FisherBroyles L.L.P. in New York.

The dissenting view “was very concerned with the original intent of the statute, that Congress never intended in 1964 to include sexual orientation in Title VII” and “it should be up to Congress as the people’s representatives to change the law,” Mr. Cohen said.

Observers point out that while Title VII now prohibits sexual orientation discrimination within the 7th Circuit, that is not the case elsewhere in the country, aside from any local laws that may apply.

“For employers, it’s important they recognize that this area of the law is in flux, and they make sure the policies they have in place are lawful in the jurisdiction where they’re doing business,” said Sam Schwartz-Fenwick, a partner with Seyfarth Shaw L.L.P. in Chicago. 

Meanwhile, employers in the 7th Circuit should look at their nondiscrimination policies in light of this ruling, he said.

Last week, in Anonymous, Matthew Christiansen v. Unicom Group et al., a three-judge panel ruled in favor of a gay plaintiff — but on the basis of gender stereotyping discrimination, not because of sexual orientation. 
 
In March, the 11th U.S. Circuit Court of Appeals in Atlanta held in Jameka K. Evans v. Georgia Regional Hospital that Title VII does not protect employees from discrimination on the basis of sexual orientation.