Title VII Covers Sexual Orientation Discrimination, Landmark Ruling Finds

Author: David B. Weisenfeld, XpertHR Legal Editor

April 12, 2017

In a first-of-its-kind ruling by a federal appellate court, the Chicago-based 7th Circuit Court of Appeals has found that discrimination based on sexual orientation is covered by Title VII of the Civil Rights Act of 1964.

The 8-3 ruling in Hively v. Ivy Tech Community College reinstates a case filed by a lesbian college professor who claims that her former employer rejected her for at least six full-time positions and did not renew her contract because of her sexual orientation.

Writing for the court, Chief Judge Diane Wood explained that Hively represented the ultimate case of failure to conform to the female stereotype. Chief Judge Wood noted, "Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman."

The EEOC has called for protecting employees from sexual orientation discrimination in the workplace. But the 11th Circuit Court of Appeals recently ruled that it could not recognize such claims under Title VII in Evans v. Georgia Regional Hospital, and other appellate courts have reached similar holdings.

Speaking with XpertHR, Littler attorney Mark Phillis, of the firm's Pittsburgh office, called the 7th Circuit's ruling an important one. "Certainly it will embolden both the EEOC and plaintiffs' counsel going forward," said Phillis. "Employers need to make sure that their policies and procedures protect employees based on sexual orientation."

The Supreme Court had recognized the right of same-sex couples to marry in its landmark 2015 ruling in Obergefell v. Hodges. However, that ruling did not address employment protections.

As 7th Circuit Judge Ilana Rovner noted last year, that creates "a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act." A three-judge appellate panel had sided with the employer in that ruling, but the full appellate court agreed shortly afterwards to rehear the case.

With the federal appellate courts now divided, it is possible the Supreme Court will examine this issue in an upcoming term.