On April 4, the US Court of Appeals for the Seventh Circuit rendered a decision leading a split in authority between federal circuits on discrimination and harassment claims based on sexual orientation. In Hively v. Ivy Tech Community College of Indiana[1] the Court held that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964. This is the first time a federal court of appeals has extended Title VII’s protections to claims based on sexual orientation.
The Facts
Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College. Hively, who is openly homosexual, had unsuccessfully applied for several full-time positions between 2009 and 2014, when the college declined to renew her contract. Believing that she had been discriminated against because of her sexual orientation, Hively brought suit under Title VII in federal court.
The Decision
The Seventh Circuit explained that it was not adding “sexual orientation” as a new protected category under Title VII. Rather, the court concluded 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 “gender nonconformity,” the court reasoned that Hively was being punished for her nonconformity with the stereotype of female heterosexuality, i.e., that women should be involved in intimate relationships with only men. Consequently, the court explained, any employment discrimination on the basis of sexual orientation necessarily takes into account the employee’s sex. Judge Diane Wood of the 7th Circuit Court of Appeals wrote: “Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
The Next Step For Employers
Employers should review their antidiscrimination and antiharassment policies and practices to ensure that they comply with the law in the jurisdictions where they have employees. In Illinois, many employers may already have adequate policies in place because there are already state law employment protections on the basis of sexual orientation. However, employers should still be sure to cover sexual orientation as a protected category when providing antidiscrimination and antiharassment training to employees and view any employee’s potential discrimination claims under the lens of this recent decision.
Should you have any questions about your current discrimination policies or should you need to update your employee handbook to ensure it complies with the currents laws, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800. Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of expertise to assist you and your business, including: Business Law, Commercial Real Estate, Estate Planning, Wills and Trusts, Probate, Guardianship, Family Law and Litigation.
[1] No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)