Court Expands Sexual Orientation Protections

Court Expands Sexual Orientation Protections

| May 8, 2017 | Employee Title VII Claims |

In the landmark case of Kimberly Hively v. Ivy Tech Community College, an Appellate Court (covering Illinois, Indiana, and Wisconsin) concluded for the first time that the federal Civil Rights Act protects against discrimination in the workplace based on one’s sexual orientation.

In the case Kimberly Hively v. Ivy Tech Community College, the United States Court of Appeals for the Seventh Circuit concluded that sexual orientation is a form of sex discrimination.  The issue was whether Title VII of the Civil Rights Act of 1964, a federal statute protecting employees against discrimination in the workplace, covers “sexual orientation” as “sex discrimination.”

The case involved an openly gay adjunct professor at a community college in Indiana, who believed she was discriminated against because she was gay.  Title VII generally makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex, or national origin …” For many years, courts have found that sex discrimination does not include discrimination on the basis of a person’s sexual orientation.

Here, the Court found discrimination based on sexual orientation is sex discrimination.  The Court looked to key Supreme Court decisions that previously found gender stereotyping fell within Title VII’s prohibition against sex discrimination, as well as cases that said sex harassment is discrimination regardless of whether the harasser is the same sex as the victim.  The Appellate Court recognized the changing landscape for protecting same-sex couples in the context of marriage. The Court noted that there could be “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

The issue is ripe for consideration from the Supreme Court as different courts have come down on different sides of the issue. Notably, the Equal Employment Opportunity Commission, which is a government agency that handles discrimination claims, now takes the position that Title VII’s prohibition against sex discrimination includes discrimination based on sexual orientation.