Seventh Circuit Holds that Discrimination on the Basis of Sexual Orientation Violates Title VII

For the past several years, the Equal Employment Opportunity Commission has interpreted the Civil Rights Act’s prohibition against sex discrimination to include claims based upon sexual orientation, and on April 4, 2017, the Seventh Circuit Court of Appeals agreed with the EEOC in the case of Hively v. Ivy Tech Community College. The Hively decision is the first time that a federal court of appeals has adopted the EEOC’s position. The Plaintiff, Kimberly Hively, was an openly gay, part-time adjunct professor at Ivy Tech Community College in Indiana. Although she applied for multiple full-time positions between 2009 and 2014, the college declined to renew her contract and she sued, claiming that she was discriminated against on the basis of her sexual orientation. Based upon Seventh Circuit precedent, the district court held that discrimination on the basis of sexual orientation does not constitute “sex discrimination” as defined by Title VII of the Civil Rights Act, and thus dismissed Hively’s claims. A panel of the Seventh Circuit reluctantly affirmed based upon Seventh Circuit precedent, but cited the shifting legal landscape in light of recent Supreme Court and other Seventh Circuit opinions. The panel decision was then reviewed and overturned by the full Seventh Circuit, which explained that adverse employment actions taken on the basis of sexual orientation were in fact a “subset of actions taken on the basis of sex.” Focusing its analysis on prior gender nonconformity cases (which violate Title VII), the court reasoned that Hively was being treated differently in the same manner – because of her nonconformity with heterosexual women, who are stereotypically attracted to men. Consequently, the court concluded that discrimination on the basis of sexual orientation is the functional equivalent of discrimination based upon that person’s sex. The Seventh Circuit also relied upon Hively’s right to freedom of association. Because the Seventh Circuit’s holding conflicts with every other Circuit, it is likely that the Supreme Court will take up and settle this issue on a national basis.

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