For the first time, a federal appellate court has determined that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Under Title VII, an employer may not take an adverse employment action against an employee on the basis of a protected characteristic, such as race, color, religion, national origin, or sex. On April 4, 2017, the full panel of the U.S. Court of Appeals for the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana that sexual orientation is a protected class that may be used as a basis to bring a discrimination or retaliation suit under Title VII.
Kimberly Hively was an openly gay adjunct professor for the Ivy Tech Community College of Indiana. During her approximate 14 year employment, Hively applied for six full-time positions, and while she alleges she was qualified for each of the positions, she was never extended a full-time offer. After her part-time position was not renewed, Hively filed suit against the college, alleging sexual orientation discrimination.
Ms. Hively’s suit was initially dismissed by the trial court, which found that Title VII does not include sexual orientation as a protected class. On appeal to a three-member panel of the Seventh Circuit, the panel upheld the trial court’s dismissal of the suit. In doing so, the Court seemed sympathetic of Ms. Hively’s plight, but determined it would take a Supreme Court decision or congressional action to extend the protections of Title VII to LGBT employees.
Several months later, a full panel of the Seventh Circuit set aside the three-member panel’s affirmation of the trial court’s dismissal and agreed re-hear the case en banc. Ultimately, in an 8-3 decision, the Court held “that discrimination on the basis of sexual orientation is a form of sex discrimination” and “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” In doing so, the Court concluded that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII.
Ms. Hively’s case was remanded back to the trial court for further proceedings.
Takeaway For Employers
There is currently a split in the federal circuits as to whether sexual orientation is protected under Title VII, making a Supreme Court review of the issue likely. Until then, employers subject to Title VII, especially those in the Seventh Circuit, should review their internal policies, including their Equal Employment Opportunity and harassment policies, to ensure they cover sexual orientation discrimination. Trainings on discrimination and harassment should also be reviewed, and revised if necessary, to ensure the inclusion of sexual orientation as a protected class.