By: Shelbie J. Luna, Drewry Simmons Vornehm, LLP
On Tuesday, the 7th Circuit ruled that Title VII, which by federal statute prohibits discrimination in the workplace based on race, color, religion, sex, and national origin, now also covers sexual orientation as a form of sex-based discrimination. In an en banc decision authored by Chief Judge Diane Wood, the 7th Circuit, which covers Indiana, Illinois and Wisconsin, became the first federal circuit in the nation to rule that sexual orientation discrimination is illegal under Title VII.
The case, Hively, v. Ivy Tech Community College of Indiana, No. 15-170, (7th Cir. Apr. 4, 2017), stems from an adjunct professor who alleged she was passed over for permanent faculty positions based on her sexual orientation as a lesbian. She filed a claim with the EEOC and eventually brought suit in federal court in South Bend, Indiana for discrimination under Title VII based on sexual orientation as a sex discrimination claim. The Northern District of Indiana dismissed Ms. Hively’s claims and she appealed to the 7th Circuit. The original 7th Circuit panel ruled that Title VII offers no protection from, nor remedies for, sexual orientation discrimination, finding that discrimination based on sex extends only to discrimination based on one’s gender, not sexual orientation. Our Circuit had already recognized that gender non-conformity claims are protected as sex discrimination under Title VII; however, in the initial Hively appeal, the 7th Circuit declined to extend protections to sexual orientation. This en banc ruling changes previous precedent and protects sexual orientation as a form of sex discrimination.
Recently, the EEOC concluded that sexual orientation is inherently a sex-based consideration and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. The EEOC has aggressively prosecuted employers in the last year for sex-based discrimination based on sexual orientation, resulting in some significant damages awards for such discrimination and harassment.
The university has, at least initially, stated they will not appeal Tuesday’s ruling to the United States Supreme Court. Thus, employers in Indiana, Illinois and Wisconsin should evaluate their employment policies in light of the Hivley ruling. Illinois and Wisconsin already had state statutory protections in place prohibiting sexual orientation discrimination in the workplace. While Indiana has not adopted sexual ordination discrimination as protected under its state civil rights statute, eighteen Indiana cities, including Anderson, Bloomington, Carmel, Columbus, Evansville, Hammond, Indianapolis, Kokomo, Lafayette, Michigan City, Muncie, Munster, New Albany, South Bend, Terre Haute, Valparaiso, West Lafayette and Zionsville, already prohibit such discrimination. So, compliance for employers in those communities will likely be easier. For other Indiana employers, work with employment counsel to ensure your managers are properly trained and employment policies are in compliance with recommended best practices.