Michael S. Powers

Michael S. Powers Associate

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Seventh Circuit (Reluctantly) Holds Title VII Doesn’t Prohibit Sexual Orientation Discrimination…

The Seventh Circuit Court of Appeals recently considered the issue of whether Title VII prohibits discrimination on the basis of an employee’s sexual orientation.  In the case of Hively v. Ivy Tech Community College, the Seventh Circuit addressed head on the conflict between enforcing Title VII’s prohibition against discrimination “because of sex” with regard to gender conformity but not doing so in cases solely concerning sexual orientation.  This is a heated topic in recent years, with the EEOC advocating, in both administrative opinions and in lawsuit, for an expansive view of Title VII’s sex protections that would include sexual orientation.  Here, the Court acknowledged the logic and weight of the EEOC’s position, as well as the “logical fallacy” of these differing results, but ultimately held course with precedent by holding that Title VII does not prohibit discrimination on the basis of sexual orientation.

In Hivey, the Plaintiff was a part-time adjunct college professor who alleged that the defendant community college had denied her the opportunity to interview for a full time position and had given her a negative performance review, both because she was a lesbian.  The lynchpin of Hivey, from a legal standpoint, is the fact that it was plead so as to allege only that the she was discriminated against because she was homosexual.  Similar cases in recent years have tended to focus upon the issue of gender nonconformity in addition to or instead of expressly alleging that discrimination was because a plaintiff was homosexual.  Accordingly, courts have regularly held that Title VII’s “because of sex” protections extend to cases alleging that a plaintiff had been discriminated against because he or she did not conform to standard gender norms.  That was not the case in Hivey.  Thus, the defendant college defended itself in district court and on appeal by arguing that Title VII does not create a cause of action for sexual orientation discrimination.  The Seventh Circuit reluctantly agreed.

In acknowledging that Title VII does not prohibit discrimination on the basis of sexual orientation, the Court noted that it was “exceptionally difficult to distinguish” between claims for orientation discrimination and claims of gender norm discrimination.  They also noted that “almost all” sexual orientation discrimination would include some form of discrimination on the basis of gender nonconformity.  The Court opined that there was no public policy rationale for the distinction either.  Throughout a detailed analysis the Court broke down the logic of following precedent, all while asserting that it would, and indeed must, do so.  Yet despite following that precedent, the Court made it clear that it disapproved, and that change is likely on the horizon.  “[T]he district courts – the laboratories on which the Supreme Court relies to work through cutting-edge legal problems – are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes.”

The Court’s framing of this issue looms large in the current jurisprudential landscape.  It essentially argued against the logic of past precedent, but refused to break that precedent to move beyond what it argued was an arbitrary line.  If other circuits reach differing conclusions it could set the stage for the Supreme Court to resolve the split, or they could consider a direct appeal.  At present the Supreme Court is still one Justice short.  Whoever fills that vacancy may well help determine whether the U.S. Supreme Court agrees that the distinction between these two types of claims is meritless.  If they do, that Court, having greater authority, may choose to eliminate the effect of that distinction and find that sexual orientation discrimination is prohibited by the sex protections of Title VII.  Alternatively, it may not, and the current balance on these issues would remain the state of discrimination law for the foreseeable future (unless Congress decides otherwise).  Time will tell, but the short-time future may hold important outcomes in this area of discrimination law.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including defending against discrimination claims of all types, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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