In a landmark decision, the Seventh Circuit ruled on April 4 that Title VII prohibits employers from discriminating against their employees on the basis of sexual orientation. Employers in Indiana, Illinois, and Wisconsin should be aware that they can now be liable for discriminating against their LGBT employees.
Breaking from its prior precedent as well as every other circuit to have considered the issue, the en banc Seventh Circuit in Hively v. Ivy Tech Community College of Indiana held that Title VII’s prohibition on discriminating against employees “because of sex” encompasses discrimination on the basis of sexual orientation. The case concerned an openly lesbian woman’s claim that she was not promoted and was eventually fired because of her sexual orientation. Against the backdrop of the Supreme Court’s recent gay marriage decisions, the majority ruled that the plaintiff’s claims could proceed.
Because the plaintiff claimed that she would have been promoted if she had been a man attracted to women, rather than a woman attracted to women, the majority reasoned that her allegations constituted discrimination “because of sex.” In addition, drawing on the Supreme Court’s prior holdings that sex stereotyping amounts to sex discrimination, the majority explained that the plaintiff’s case “represents the ultimate case of failure to conform to the female stereotype.” The majority further reasoned that Title VII prohibits discrimination based on the gender of someone with whom the plaintiff intimately associates.
The decision was not unanimous. In addition to two concurrences, three judges dissented. They argued that the plain meaning of “because of sex” does not fairly include “because of sexual orientation.” Accordingly, the dissent viewed the majority’s opinion as an improper judicial amendment of Title VII.
The Supreme Court has yet to speak on this issue. Until now, all of the Courts of Appeals that had addressed the issue had agreed that Title VII did not include sexual orientation as a protected class. Now that there is a split in the circuits, it is more likely that the Supreme Court will weigh in.