The stage has been set for the Supreme Court to consider whether sexual orientation is protected sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Sitting en banc last week, the Seventh Circuit Court of Appeals in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017) became the first federal appeals court to decide that sexual orientation is protected. The bipartisan 8-3 decision in Hively creates a circuit split, leading many to think the issue will be decided on a national scale by the Supreme Court. For example, just weeks ago the Eleventh Circuit held that sexual orientation was not protected by Title VII. Evans v. Georgia Reg’l Hosp., No. 15-15234, 2017 WL 943925 (11th Cir. Mar. 10, 2017).
The facts in Hively are relatively straightforward. Kimberly Hively, an openly gay adjunct professor at Ivy Tech Community College, applied for several full-time positions for which she believed she was qualified. After Ivy Tech repeatedly passed her over and then failed to renew her part-time contract, Hively filed a lawsuit in the U.S. District Court for the Northern District of Indiana, alleging that Ivy Tech had discriminated against her on the basis of her sexual orientation, in violation of Title VII. The district court granted Ivy Tech’s motion to dismiss the case, finding that sexual orientation was not a protected class under Title VII. The district court’s decision was upheld on appeal by a three judge panel of the Seventh Circuit, but overturned when the Seventh Circuit reheard the case en banc.
The Seventh Circuit decided that sexual orientation discrimination is sex discrimination under Title VII for three reasons. First, the Court relied on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) to find that sex discrimination encompasses discrimination because of sexual orientation where an individual is discriminated against for failing to conform to stereotypical gender roles. Second, the Court reasoned that discriminating against a woman because she is dating a woman as opposed to dating a man is in itself sex discrimination, which is protected by the plain language of Title VII. Finally, the Court applied the reasoning in Loving v. Virginia, 388 U.S. 1 (1967), which prohibited discrimination against a person for associating with an individual of another race.
While Ivy Tech has said it will not appeal to the Supreme Court, commentators view the issue as ripe for consideration by the nation’s highest court given the circuit split and the Equal Employment Opportunity Commission’s (EEOC) existing view that Title VII protects employees from discrimination on the basis of sexual orientation. Many state and local laws also already protect gay and lesbian employees. As of July 2015, twenty-nine states, including Maryland, Virginia and the District of Columbia, protected against employment discrimination on the basis of sexual orientation.
What does this mean for employers? Because employers must comply with the most protective employment discrimination laws they are subject to, employers in the Seventh Circuit and states where sexual orientation is already a protected class should conform their anti-discrimination and anti-harassment policies to be in accordance with the Seventh Circuit’s decision in Hively and/or applicable state law. For example, Maryland employers should include all of the following protected classifications in their equal employment opportunity policies: race, color, religion, national origin, ancestry, sex, age, marital status, sexual orientation, gender identity, physical or mental disability, genetic information, and pregnancy. Md. State Government Code Ann. § 20-601, et seq. Where sexual orientation is a protected class, employers also should modify their anti-discrimination and anti-harassment training programs accordingly.
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