Yesterday, the Seventh Circuit Court of Appeals (the federal circuit court covering Illinois, among other states) ruled that the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. Hively v. Ivy Tech Community College of Indiana (7th Cir. April 4, 2017).
The case involved a lawsuit filed by Kimberly Hively against her employer, Ivy Tech Community College. Hively was a part-time adjunct professor at the college who had applied six times, unsuccessfully, for a full-time position from 2009 and 2014. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that she was being discriminated based on her sexual orientation. In 2014, after she filed her charge with the EEOC, her part-time contract was not renewed.
She received her right-to-sue letter and filed her lawsuit in the district court. That court granted the college's motion to dismiss, on the basis that sexual orientation is not a protected class under Title VII of the Civil Rights Act. She then appealed to the Seventh Circuit Court of Appeals.
The Seventh Circuit first acknowledged that the U.S. Supreme Court and the other circuit courts of appeals have not recognized sexual orientation to be part of Title VII's sex discrimination protection.
The Court framed the issue before it as not whether the Court should "amend" Section VII to add a new protected category, but instead whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex, which is protected under Section VII. In the Seventh Circuit's view, that answer is yes, because, as the Court states in the Hively opinion, "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex..." As a result, the Court overturned the district court's dismissal of Hively's complaint against her former employer, holding that "a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes."
There were separate concurring opinions that agreed with the majority decision finding in favor of Hively, but suggesting the outcome should be based on other grounds. The dissenting opinion argued that the majority's opinion effectively amended Title VII, and that power should remain with the legislative branch rather than the courts.
Post Authored by Julie Tappendorf