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Employers Are Disoriented After Seventh Circuit Rejects Claim For Sexual Orientation Discrimination

UPDATE: This case is currently under review by the United States Court of Appeals for the Seventh Circuit. Although a three-judge panel initially concluded that Title VII did not protect an employee from discrimination based on sexual orientation, the Seventh Circuit has granted the employee’s petition for en banc review. This means that the Seventh Circuit will rehear argument in the case before all of the court’s judges. Employers should continue to monitor this case and check back for further updates.

In a recent decision, the United States Court of Appeals for the Seventh Circuit ruled that employees facing discrimination because of their sexual preference or orientation have no protection or redress under Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of sex, race, religion, and national origin. This decision may come as a surprise to many employers since it directly contradicts previous rulings of the Equal Employment Opportunity Commission (“EEOC”), the body charged with enforcing Title VII, that have allowed claims for sexual orientation discrimination to be brought under Title VII as a form of sex discrimination. Nevertheless, although the Seventh Circuit disallowed the claim, its opinion underscores that federal law could soon prohibit employment-based sexual orientation discrimination.

In Hively v. Ivy Tech Community College, a part-time professor filed a complaint against her employer for sexual orientation discrimination in violation of Title VII. She alleged that she was denied a full-time position and various promotions because of her sexual orientation. The employer moved to dismiss the case and argued that Title VII does not apply to claims of sexual orientation discrimination. The district court agreed and dismissed the employee’s claims.

On appeal, the Seventh Circuit agreed with the district court by holding that Title VII’s prohibition against sex discrimination does not encompass sexual orientation discrimination. The Seventh Circuit determined that it was bound by prior case law in which it had held that Title VII offered no protection from nor remedies for sexual orientation discrimination. In addition, the court explained that Congress has “repeatedly rejected legislation that would have extended Title VII to cover sexual orientation” and the Supreme Court “has opted not to weigh in on the question.”

Notably, however, the Seventh Circuit acknowledged the significant inconsistency in federal protection of sexual orientation resulting from the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court pointed out that “although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.”

The Seventh Circuit’s decision also welcomed action from Congress or the United States Supreme Court to address the “emerging consensus that sexual orientation [discrimination] in the workplace can no longer be tolerated.” For example, Congress could pass new legislation, like the Equality Act of 2015, to amend Title VII to include sexual orientation as a protected class. In addition, the Supreme Court may have to clarify diverging court of appeals rulings regarding Title VII’s application to sexual orientation. Although the Seventh Circuit is the first court to address whether sexual orientation discrimination claims can be brought under Title VII, other courts of appeals are currently confronting cases with this same issue. See e.g., Christiansen v. Omnicom Group Inc., 15CV3440, 2016 WL 951581 (S.D.N.Y. 2016), appeal docketed, No. 16-748 (2d Cir. March 9, 2016); Evans v. Georgia Regional Hospital, No. CV415-103, 2015 WL 6555440 (S.D. Ga. 2015), appeal docketed, No. 15-15234 (11th Cir. Nov. 19, 2015).

Even if Title VII’s anti-discrimination protections do not extend to sexual orientation, employers must remember that many state and local laws prohibit sexual orientation discrimination. For example, Wisconsin prohibits discrimination based on sexual orientation and several Wisconsin counties and cities prohibit discrimination based on gender identity. Moreover, as noted in the Hively decision, federal law changes may be forthcoming. Thus, employers should remain cognizant of the potential for sexual orientation discrimination in the workplace, even in jurisdictions where sexual orientation is not currently a protected characteristic. Employers should also monitor pending legislation and cases which may further clarify the protections and remedies available for sexual orientation discrimination.

For further information, please contact the author or your regular DeWitt Employee Relations attorney.

About the Author

Laura Davis is an attorney in Dewitt’s Litigation, Labor & Employment Relations, Intellectual Property and Background Screening practice groups. Laura is committed to producing timely, high quality legal work in an efficient and effective manner. She values building relationships with clients to guide them through their complex legal needs.

Contact ​Laura by email or by phone at (608) 252-9337.

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