Federal Court Denies Petition to Protect Sexual Orientation from Workplace Discrimination

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 3, 2016

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A federal appeals court has held that the workplace protections offered to minority groups under Title VII do not extend to members of the LGBT community.  In a ruling issued last week, the Seventh Circuit Court of Appeals declined to cover sexual orientation under Title VII, setting the tone for the next stage in the legal battle for LGBT rights.

Plaintiff Seeks Title VII Protection of Sexual Orientation

Kimberly Hively worked part time as a professor for Ivy Tech Community College for several years before filing a claim with the Equal Employment Opportunity Commission alleging that she was denied full time employment and promotion because she had been discriminated against for being a lesbian. According to Hively, her employer unlawfully discriminated against her sexual orientation in violation of Title VII which prohibits any discrimination on the basis of sex.  Although Title VII does not specifically extend the term discrimination on the basis of sex to include sexual orientation, LGBT plaintiffs have frequently attempted to make the connection in order to earn legal redress.

As Hively’s lawsuit made its way to the courtroom, Ivy Tech offered the bare minimum of legal defenses: Title VII does not protect individuals based on their sexual orientation.  The federal district judge hearing the case agreed with the defendant, and dismissed the case without a trial.  Hively appealed the decision against her to the Court of Appeals for the Seventh Circuit, citing as support a recent decision from the EEOC which wrapped sexual orientation under the umbrella of Title VII’s protection against sex discrimination.  The Court of Appeals, however, disagreed with Hively and the EEOC and held that Title VII protections cannot be extended to sexual orientation without intervention from the Supreme Court or Congress.

Federal Appeals Court Limits Title VII Protection

In a 3 – 0 decision by a three-judge panel, the Chicago based 7th Circuit Court of Appeals declined to protect members of the LGBT community against workplace discrimination based on their sexual orientation.  Federal anti-discrimination law codified in Title VII prohibits against discrimination based on race, color, religion, sex, and national origin, but, as the Court pointed out, sexual orientation is not specifically mentioned.  The recent groundswell of legal rulings favorable to LGBT rights has turned its attention towards workplace discrimination based on sexual orientation with the EEOC issuing a ruling that covered the issue under Title VII, but the EEOC does not have legal authority over federal courts and the matter is yet unsettled across the judiciary.

The opinion from the 7th Circuit Court of Appeals in Hively v Ivy Tech went to great lengths to discuss the confusing legal landscape in which courts struggle to parse out the difference between discrimination based on sex and discrimination based on sexual orientation, pointing out the inconsistencies of a system in which plaintiffs are protected then they are discriminated against for engaging in behavior which violates gender norms, but typically are not protected when a workplace takes adverse action simply because the plaintiff is gay.  Almost begrudgingly, the Court wrote that despite the inherent unfairness of a legal system which allows someone to be married on a Friday and fired on a Monday, the recent support for gay rights in federal court does not allow the judiciary to provide workplace protections based on sexual orientation.

The opinion concluded by writing that the law on the issue will not be properly settled without Supreme Court or Congressional intervention, opening the door for continued legal action by members of the LGBT community who seek to challenge workplace discrimination.

LGBT Discrimination in the Workplace after Hively

Although the 7th Circuit Court of Appeals was fairly clear in its holding that sexual orientation discrimination is not protected under Title VII, the underlying legal issue is far from settled or consistent in jurisdictions across the country.  As the Court pointed out, the EEOC has taken the exact opposite position on the issue, and several lower federal courts have agreed with the agency and broadened the scope of Title VII to prohibit sexual orientation discrimination by employers.  With two other federal appeals courts expected to issue a ruling on the matter later this year, Supreme Court intervention is a looming possibility, particularly if one of the circuits comes to a different conclusion than the 7th Circuit did this week.

At the heart of the problem sits the lack of legislative initiative to specifically amend Title VII to protect LGBT members from workplace discrimination.  Historically, creating a protected class of individuals has been the purview of Congress, however, the stagnation on LGBT rights has forced equality advocates to seek redress in the judiciary instead.  Despite successes on privacy and marriage equality measures, creating workplace discrimination protection via a series of favorable court battles already seems like more of an uphill battle, and ultimately Congress may be the only available avenue to prohibit employer discrimination against LGBT individuals.


April 2017 – The Seventh Circuit Court of Appeals in Chicago has ruled that Title VII of the 1964 Civil Rights Act protects gay workers from job discrimination. Read more

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