A Seventh Circuit Court decision finds that sex discrimination, a protected right under Title VII, includes sexual orientation. As background, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual’s race, color, religion, sex or national origin. Over the years since the law’s enactment, the issue of what constitutes sex discrimination has been the subject of much litigation.
In the matter of Hively v. Ivy Tech Cmty Coll (2017 WL 1230393, 7th Cir. 2017), the plaintiff-appellate began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000. From 2009 to 2014, she applied for at least six full-time positions with unsuccessful results; and was finally terminated when her part-time teaching contract was not renewed in 2014. Ms. Hively then filed a charge with the Equal Employment Opportunity Commission on December 13, 2013. Her contention was based on the premise that she was denied a full-time teaching position with the College due to her sexual orientation.
On appeal, the 7th Circuit concluded that sexual orientation falls within the purview of sex discrimination, based on several theories. First, the Court utilized a comparative method of analysis in which all being seen equal, had the plaintiff been heterosexual, the promotion would have been granted. Next, the Court applied a gender-stereotyping theory pursuant to which it determined that the plaintiff was harmed because she did not carry herself in a gender-stereotypical way. And lastly, the Court applied an associational theory pursuant to which the plaintiff was denied the promotion due to her association with another woman.
Other circuit courts have determined that sexual orientation is not protected by Title VII. Given the split among the circuits, it is possible that this matter will proceed to the Supreme Court at some point. In the meantime, employers should use caution and consult with legal counsel in any matter that could be deemed to be discriminatory.
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