Seventh Circuit Prohibits Anti-LGBT Workplace Discrimination in Landmark Ruling

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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: Apr 19, 2017

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Employee RightsThe federal Seventh Circuit Court of Appeals has issued a landmark ruling which will change the landscape of LGBT employment rights, and kick off a fresh round of legal debate which will surely be resolved by the Supreme Court in the near future. In a groundbreaking decision, the 7th Circuit justices expanded Title VII protections to cover LGBT employees, meaning that employers who take adverse anti-gay actions can be found liable for discrimination under federal law.

LGBT Employee Files Title VII Discrimination Lawsuit

The case at issue in Hively v Ivy Tech Community College was brought by an openly lesbian part-time professor at ITCC who alleged that her multiple attempts to become full-time faculty failed because the college would not promote an openly gay professor. 

After years of unsuccessful attempts at earning a full-time position, Hively filed a complaint with the EEOC alleging that she was blocked from the promotion “without just cause” and stated her belief that she was being “discriminated against based on [her] sexual orientation.”  Further, Hively alleged that such discrimination is in violation of Title VII of the Civil Rights Act of 1964, which specifically prohibits any discrimination based on sex.

Traditionally, Title VII has been applied to discriminatory practices against women by employers, and over time the definition of discrimination based on sex has expanded to include not only overt behavior, but also requirements which enforce traditional gender roles — such as demanding women dress and behave in a feminine way by wearing skirts or dresses or makeup. 

Additionally, the Supreme Court has applied Title VII’s prohibition on discrimination based on sex to protect men from male-on-male harassment which targets male employees who do not conform to gender stereotypes. Although the definition of discrimination based on sex has expanded since Title VII’s original passage, courts have thus far declined to take the step of interpreting the law to protect harassment against the LGBT community.

Despite lacking a legal precedent, Hively’s attorneys advanced the argument that discrimination based on sexual orientation is, in fact, discrimination based on sex. A lower federal court disagreed, and granted ITCC’s motion to dismiss the case. However, after multiple appeals which again went against the plaintiff, the 7th Circuit agreed to re-hear the case en banc.

Seventh Circuit Expands Title VII Protections to LGBT Employees

The history of the judiciary’s approach to interpreting what discrimination based on sex means under Title VII is littered with cases which come very close to protecting LGBT employees without actually taking the final step.  As a result, there is not a clear line which identifies where impermissible discrimination based on gender stereotyping becomes permissible discrimination based on sexual orientation, leaving the question of what employers can and cannot do dependent on a confusing and hyper-technical evaluation of behavior, attitude, and motivation.

As the LGBT community has become more openly active in seeking civil rights through the legal system, however, courts have been forced to account for the confusing state of Title VII’s stance on sexual orientation discrimination.

The EEOC offered the first break from tradition by taking existing statutory interpretation of Title VII to its logical conclusion in declaring that under the agency’s view, discrimination based on sex included discrimination based on sexual orientation. Although the EEOC’s opinion is not binding on the judiciary, it represented the first legally justified opinion of significance to expand Title VII’s protections to cover the LGBT community.

After reviewing Hively v ITCC, the 7th Circuit followed suit with a significant and groundbreaking opinion which will have an effect on American law, and potentially alter the landscape of Title VII forever. According to the opinion, any discrimination against an employee because of their sexual orientation is inherently discrimination based on their sex: a man who is in a relationship with another man is discriminated against based on his gender, and therefore Title VII protects him.

According to the majority, when an employer takes an adverse action against an LGBT employee because of the gender of their partner, then that employer is discriminating based on sex because such action relies on the employer’s beliefs about the way men and women should behave in their intimate private relationships. After finding that Hively had provided a sufficient justification for her Title VII claim, the 7th Circuit sent the case back to trial to determine whether or not ITCC engaged in impermissible behavior.

Title VII Ruling Changes Legal Landscape

The 7th Circuit’s decision to expand the definition of sex discrimination in Title VII to include sexual orientation discrimination has been hailed as a significant legal victory for LGBT rights, and serves as a break from the traditional stance held by federal appeals courts. Earlier this year, the 11th Circuit Court of Appeals in Georgia stuck with established precedent and came to the opposite conclusion. The 2nd Circuit in New York did as well, and that case is in the process of being appealed to the full panel of judges.

Although ITCC has said it will not appeal the Hively ruling to the Supreme Court, the number of federal appeals courts which are now grappling with the issue suggests that the matter will make its way up the chain sooner rather than later — possibly by next term.  When it does, the ultimate swing vote will likely come down to Justice Anthony Kennedy, who has issued deciding opinions supporting gay rights in major decisions over the last few years, most notably in Obergefell v Hodges, which protected LGBT rights to marry.

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