7th Circuit Rules Title VII Does Not Prohibit Sexual Orientation Bias
Author: David B. Weisenfeld, XpertHR Legal Editor
August 8, 2016
The 7th Circuit Court of Appeals has ruled that Title VII of the federal Civil Rights Act does not protect employees who claim sexual orientation discrimination. Despite expressing some discomfort with its own finding in Hively v. Ivy Tech Community College, the court noted that Congress has repeatedly rejected legislation to extend Title VII to cover sexual orientation.
Writing for the Chicago-based appellate court, Circuit Judge Ilana Rovner also asserted that while the Supreme Court recognized a right to same-sex marriage in its landmark 2015 ruling in Obergefell v. Hodges, it said nothing about employment protections. Judge Rovner said the result is that past cases, as they stand, "create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act."
The present case involved a part-time professor who claimed her employer, Ivy Tech Community College, refused to interview her for a full-time position despite the fact that she had never received a negative evaluation. She also claimed that the college did not renew her part-time employment contract based on her sexual orientation.
The appellate court noted that gay, lesbian, bisexual and transgender employees who have framed their sex discrimination claims in terms of discrimination based on gender nonconformity have been successful. However, they have failed when basing their claims on sexual orientation discrimination, as in this situation. Judge Rovner called this distinction, "An odd state of affairs."
The EEOC has called for protecting employees against sexual orientation bias in the workplace. In a 2015 ruling, it found that sexual orientation is inherently a "sex-based consideration" and that a discrimination claim based on sexual orientation is necessarily a sex discrimination claim under Title VII.
In citing the EEOC's pronouncement, Judge Rovner suggested that society is shifting on this issue of sexual orientation discrimination. But she added, "Writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must follow our prior rulings."