Seventh Circuit Rules That Title VII Does Not Apply to Sexual Orientation Discrimination Claims, At Least For Now...

As discussed in prior posts, the Equal Employment Opportunity Commission (EEOC) has a strategic enforcement agenda focused on expanding Title VII protections to encompass gender identity and sexual orientation. Courts are weighing in, with varied results. According to the EEOC’s website, a number of federal courts have sided with the EEOC’s interpretation of Title VII, primarily in the context of gender identity. On July 28, 2016, however, the U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit precedent, Title VII’s anti-discrimination protections do not extend to claims of sexual orientation. At the same time, the Seventh Circuit panel observed that there is an “emerging consensus that sexual orientation in the workplace can no longer be tolerated,” and the panel appeared to be nudging the U.S. Supreme Court or Congress to take up the issue and provide direction to the lower federal courts.

The Seventh Circuit issued its recent decision in the case of Hively v. Ivy Tech Cmty. Coll. The case was brought by Kimberly Hively, a part-time adjunct professor at Indiana-based Ivey Tech Community College. After working for the college for about three years, Hively filed a “bare bones” charge of discrimination and then a lawsuit under Title VII, alleging that she was passed over for six full-time positions and that her adjunct contract was not renewed based on her sexual orientation. Ivy Tech moved to dismiss Hively’s complaint on grounds that Title VII does not extend to claims of sexual orientation discrimination. The federal district court granted Ivy Tech’s motion, and, on appeal, the Seventh Circuit affirmed.

In reaching its ruling, the Seventh Circuit undertook a meticulous journey through prior Title VII case law, including Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (finding that gender stereotyping discrimination violates Title VII) and a host of lower court cases involving sexual orientation discrimination and sex-stereotyping discrimination cases. The court noted that, in cases where LGBT plaintiffs frame their Title VII claims as discrimination based on gender non-conformity (e.g. sex-stereotyping discrimination) as opposed to their sexual orientation itself, some courts have recognized viable Title VII claims. Specifically, the court noted that claims tended to be successful when plaintiffs “could carefully cull out the gender non-conformity discrimination from the sexual orientation discrimination.” On the other hand, plaintiffs “who [did] not look, act, or appear to be gender non-conforming, but [were] merely known to be or perceived to be gay or lesbian [did] not fare as well” in court.

The Seventh Circuit went on to explain that “the distinction between gender non-conformity claims and sexual orientation claims has created an odd state of affairs” in which LGBT employees are protected under Title VII only if they do not conform to society’s stereotypical norms about how gay men or lesbian women look and act. On the other hand, LGBT employees who otherwise conform to traditional gender norms in dress and mannerisms generally cannot state a viable Title VII claim. The court questioned the legitimacy of this dichotomy on grounds that “all gay, lesbian, and bisexual persons fail to comply with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.”

Nevertheless, the Seventh Circuit ultimately upheld the dismissal of Ms. Hively’s suit. It held that it was bound by prior Seventh Circuit precedent rejecting the notion that Title VII encompasses a sexual orientation claim not based on allegations of sex stereotyping discrimination. The court cautioned, however, that “[p]erhaps the handwriting is on the wall” for future changes to the scope of Title VII. The Seventh Circuit panel stated that it did not condone discrimination based on sexual orientation and that other courts are beginning to “question the doctrinaire distinction between gender non-conformity discrimination and sexual orientation discrimination and [are] coming up short on rational answers.”

The Seventh Circuit has jurisdiction over federal claims brought in the states of Illinois, Indiana, and Wisconsin. Minnesota, where this blogger lives, is in the Eighth Circuit. Minnesota employers should be mindful, however, that gender identity and sexual orientation discrimination are expressly prohibited by Minnesota’s state discrimination law. Some religious employers may be exempt from aspects of Minnesota’s discrimination laws, but most Minnesota employers are already obligated to adopt policies and practices to ensure a nondiscriminatory work environment for LGBT applicants and employees.