Court Rules Sexual Orientation Is Protected in Landmark Decision

April 7, 2017

Title VII is a federal law that was enacted in 1964 and prohibits employers with 15 or more employees from discriminating against employees and job applicants on the basis of race, color, religion, sex, or national origin.  Prior to April 4, 2017, no federal court of appeals in the country had interpreted “sex,” as used in Title VII, to include sexual orientation and, in fact, most had rejected such an interpretation.  In the case Hively v. Ivy Tech Community College of Indiana, all eleven judges on the Seventh Circuit (the federal court of appeals covering Wisconsin, Illinois, and Indiana) considered this question.  The Seventh Circuit’s previous decisions had rejected that sexual orientation was covered by Title VII.  In Hively, eight of the eleven judges overruled these prior decisions.  However, even the eight judges did not agree on the particular reason to conclude that sexual orientation should be covered by Title VII, resulting in three separate opinions.

In this case, Ms. Hively was a part-time adjunct professor at an Indiana community college.  She was openly lesbian.  She applied for at least six full-time positions over a five-year period but was not hired for any position.  In July 2014, her part-time contract with the community college was not renewed.  She filed a discrimination charge with the EEOC, claiming that she was not hired for the position she applied for and that she was non-renewed because of her sexual orientation.  After receiving a right to sue letter from the EEOC, which allowed her to proceed with the case in court, she filed a lawsuit in federal court in Indiana alleging a violation of her rights under Title VII – namely that the community college had unlawfully discriminated against her because of her sexual orientation.  The community college moved to dismiss her case, arguing that Seventh Circuit law was clear that sexual orientation discrimination is not covered by Title VII.  The trial court agreed and dismissed Ms. Hively’s case.

Ms. Hively appealed the dismissal of her case to the Seventh Circuit Court of Appeals.  A panel of three judges on the Seventh Circuit, who were bound by prior Seventh Circuit precedent, affirmed the dismissal of her case.  Ms. Hively then petitioned to have the full eleven judges of the Seventh Circuit consider her appeal, which they agreed to do.  The majority of the full court decided to reverse dismissal of her case and sent the case back to the trial court for further proceedings.  In doing so, the Seventh Circuit overruled its prior cases and ruled, for the first time, that sexual orientation is included within the prohibition against discrimination based upon sex.  The Seventh Circuit is the first appellate court in the country to so rule.

In reversing its position on whether sexual orientation is covered by Title VII, the main decision looked at several United States Supreme Court decisions during the past two decades which suggested that the Supreme Court was moving in this direction.  For example, the Supreme Court had concluded that same-sex sexual harassment was actionable under Title VII.  The Supreme Court had also ruled that certain sexual stereotyping could be pursued as a violation of Title VII.  The 69-page decision is a treasure trove for law school students and lawyers.  The decision is a window into the various approaches that judges can, and do, take when confronted with interpreting the meaning of language in a law.  Additionally, for employment lawyers, the decision discusses how to pick the appropriate comparator – the person to be compared with the individual alleging discrimination.

The Hively decision has potentially significant ramifications for both employers and employees.  The decision removes any question that sexual orientation and likely gender non-conformity, will be protected classes under Title VII as part of “sex.”  This means that a person cannot be discriminated against because of his or her sexual orientation in any aspect of employment from recruitment to discharge, cannot be harassed based on an individual’s sexual orientation, and cannot be retaliated against because the individual complains of discrimination or harassment based upon his or her sexual orientation.

The state of Wisconsin already has a law prohibiting employment discrimination based on sexual orientation.  However, the remedies available to employees or job applicants under Wisconsin’s Fair Employment Law are more limited than those available under Title VII.  For example, under Title VII, an employee or job applicant can recover compensatory damages for injuries such as emotional distress or humiliation resulting from the discrimination or harassment.  Punitive damages are also available under Title VII.  Both compensatory and punitive damages under Title VII are subject to limits, based upon the size of the employer.  Under Wisconsin law, neither compensatory nor punitive damages are available to an employee or job applicant who proves unlawful discrimination or harassment.

It is likely that the United States Supreme Court will be asked to review the issue of whether sexual orientation is covered by Title VII in the not too distant future.  I would expect that this is an issue the U.S. Supreme Court will have an interest in reviewing and will want to provide guidance to employers, employees, and lower courts considering this issue.