Seventh Circuit Holds Federal Law Prohibits Employers From Firing People Because they are Gay

Before the full panel, the U.S. Court of Appeals for the Seventh Circuit issued a groundbreaking decision, holding 8-3 that workplace discrimination based on sexual orientation violates federal civil rights law.

The case involved a lesbian, Kimberley Hively, who sued Ivy Tech Community College when it denied her full-time employment and promotions because she was a lesbian and married to a woman. Hively began teaching at Ivy Tech in 2000 as a part-time adjunct professor. Between 2009 and 2014, Hively applied for at least six full-time positions, but each of these efforts were unsuccessful; even worse, in July 2014 her part-time contract with Ivy Tech was not renewed, resulting in her termination.

After she was terminated, Hively filed an administrative complaint with the Equal Employment Opportunity Commission, alleging that Ivy Tech discriminated against her because of her sexual orientation and violated her rights under Title VII of the Civil Rights Act of 1964. After the trial court dismissed the case, the Seventh Circuit initially affirmed the the trial court's decision based on decades of case law that held sexual orientation was not a protected category under Title VII. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). 

Before the Seventh Circuit's full panel, Chief Judge Diane Wood, writing for the majority, brought new life into analyzing claims of sexual orientation discrimination under Title VII. The court framed the main question of the case as a question of statutory interpretation: what does it mean to discriminate on the basis of sex, and in particular, are actions taken on the basis of sexual orientation  a subset of actions taken on the basis of sex?

Guided by the U.S. Supreme Court's approach in a related case addressing whether Title VII covered sexual harassment inflicted by a man on a male victim (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)), the Seventh Circuit acknowledged that discrimination on the basis of sexual orientation may not have been the principal evil Congress was concerned with when it passed Title VII. The Seventh Circuit nonetheless found that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which [courts] are governed." Id. at 79-80. The court also acknowledged that Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman simply because of her gender.

Hively framed her argument for why she should be covered by Title VII under two approaches: (1) a simple comparison isolating Hively's sex and the significance it played in her employer's decision; and (2) relying on Loving v. Virginia, 388 U.S. 1 (1967), which found that the Fourteenth Amendment of the constitution protects interracial marriages, holding that Title VII protects Hively's right to associate intimately with a person of the same sex. 

Under the first approach, the court found that if Hively had been a man married to a woman, and everything else would have stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. The court stated that "any discomfort, disapproval, or job decision based on the fact that the complainant - man or woman - dresses differently, speaks differently, or dates and marries a same-sex partner, is a reaction purely and simply based on sex," falling within Title VII's prohibition against sex discrimination. 

Addressing the second theory of discrimination presented by Hively, the court, relying on decades of cases holding that Title VII prohibits discrimination based on the race with whom a person associates, found that Ivy Tech's discrimination against Hively based on the sex of the person she associated with is also prohibited under the act. 

The court concluded with a clear holding: a person alleging that he or she experienced employment discrimination on the basis of his or her sexual orientation has put forth a case of sex discrimination for Title VII purposes. 

This is a landmark decision for the LGBTQ community, extending federal employment protections in Wisconsin, Illinois, and Indiana, which previously had state laws that only prohibited employment discrimination on the basis of sexual orientation with regards to state employment. This decision will now cover all private and public employers subject to Title VII. And, this will hopefully lead to other U.S. Circuit Courts revisiting this issue and expanding employment protections across the country for the LGBTQ community.

In California, the state's Fair Employment and Housing Act and Unruh Civil Rights Act have explicitly protected sexual orientation and gender identity from discrimination in employment, housing, and public accommodations for many years. Last year, California's Department of Fair Employment and Housing became the first state civil rights agency to issue guidance to employers regarding transgender employees.

If you have experienced discrimination based upon your sexual orientation, and need help, contact Bryan Schwartz Law.