Neither the US Supreme Court nor any federal circuit appellate court has held that discrimination based on sexual orientation is prohibited by Title VII. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Seventh Circuit, as well as several other Appellate Courts, have long held that Title VII does not cover sexual orientation, applying a strict construction of the 1964 statute. The Courts have reasoned that even though the statute prohibits sex discrimination, which has been interpreted restrictively as “gender discrimination”, Title VII does not expressly prohibit sexual orientation discrimination.
But the Seventh Circuit may change that.
In July of 2016, the Seventh Circuit reviewed the case of Hively v. Ivy Tech Community College, 830 F.3d 698 (7th Cir. 2016), and held, although expressing reluctance, that Title VII does not provide protection against discrimination based on sexual origination.
In that case, an Ivy Tech adjunct professor, Kimberly Hively, sued the school in August 2014 alleging it blocked her from a full-time job because she is gay. The Northern District of Indiana dismissed her suit based on the well-established precedent of the Seventh Circuit barring Title VII violation claims based on sexual orientation. She appealed.
After noting that Title VII provides protection for individuals who are discriminated against on the basis of gender nonconformity and expressing its displeasure with the limitation of the Statute, a three-member panel of the Seventh Circuit affirmed the district court decision in July, reasoning its hands were tied by the language of the Title VII Statute:
Because we recognize that Title VII in its current iteration does not recognize any claims for sexual orientation discrimination, this court must continue to extricate the gender nonconformity claims from the sexual orientation claims. We recognize that doing so creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and mannerisms at work, the more likely a court is to recognize a claim of gender non-conformity which will be cognizable under Title VII as sex discrimination…Plaintiffs who do not look, act, or appear to be gender non-conforming but are merely known to be or perceived to be gay or lesbian do not fare as well in the federal courts.
But, that decision did not end the case. After Hively pushed for rehearing, the Seventh Circuit granted en banc review in the case, which could permit it to reconsider its stance. Thus, the full Seventh Circuit Court is now reviewing the case. The Court heard arguments on November 30, 2016. Hively’s counsel argued that the statute prohibits discrimination based on “sex” and the court should apply the statute to include “sexual orientation” within the meaning of Title VII’s prohibition against discrimination based on sex.