August 9, 2016
A notable decision issued by the U.S. Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech Community College bucks the recent equal protection trend in favor of LGBT rights. Specifically, the court declined to break with earlier precedent, and instead held that an individual’s sexual orientation is not a protected characteristic under Title VII of the Civil Rights Act of 1964.
Hively, a college professor, claimed that her community college employer violated Title VII by denying her full-time employment on account of her sexual orientation. While the court noted the “emerging consensus that sexual orientation discrimination in the workplace can no longer be tolerated,” and expressly stated that it was not condoning sexual orientation discrimination in any form, it held that Hively’s claim was simply not covered by Title VII. Notwithstanding what it called “the writing on the wall,” the court signaled that only contrary Supreme Court guidance or new legislation would alter the result.
This case serves as a reminder that federal Courts of Appeal have thus far declined to recognize sexual orientation as a characteristic protected by Title VII’s general prohibition against discrimination on the basis of “sex.” By contrast, however, courts have permitted analogous claims to proceed where such claims are based on perceived nonconformity with traditional gender roles. In addition, the EEOC has expressed its intent to process and litigate claims of sexual orientation discrimination under Title VII.
State laws and local ordinances in numerous jurisdictions have already enacted legislation prohibiting sexual orientation discrimination in employment. While federal legislation in this area is unlikely in the near term, it would be consistent with the general trend toward recognition of LGBT rights. Consequently, employers should consult legal counsel and remain vigilant as to changes in the law on the federal, state and local levels.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Authors:
Darren M. Creasy is a Principal in the Firm's Employment & Employee Relations Practice Group. His comprehensive employment law practice is focused primarily on defending diverse civil litigation and administrative agency proceedings arising under the ADA, FMLA, FLSA, ADEA, Title VII, NLRA, USERAA, the Rehabilitation Act, the Equal Pay Act, and corollary state fair employment practice laws, among others.
Benjamin L. Shechtman is an Associate in the Firm's Employment & Employee Relations Practice Group. His practice focuses on counseling and representing employers in claims brought under every major employment statute, including Title VII, ADEA, FMLA, ADA, FLSA, NLRA, and their state analogs.