In July 2015, the Equal Employment Opportunity Commission ("EEOC") published a guidance titled What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, which took the position that employment discrimination against members of the LGBT community is covered under Title VII of the Civil Rights Act of 1964's ("Title VII") prohibition of sex discrimination. The EEOC's Guidance, at the time, stood in direct contradiction to 10 out of 13 United States Circuit Courts of Appeals that held that sexual orientation was not protected by Title VII. The EEOC's Guidance foreshadowed that discrimination against LGBT individuals in the workplace would begin to face greater scrutiny.

On April 4, 2017, the Seventh Circuit Court of Appeals, in Hively v. Ivy Tech Community College of Indiana, recognized that Title VII prohibits sexual orientation discrimination. To date, the Seventh Circuit is the first federal court of appeals to recognize that Title VII prevents sexual orientation discrimination in the workplace.
Plaintiff Kimberly Hively ("Hively") is openly homosexual and was a part-time adjunct professor at Ivy Tech Community College of Indiana, South Bend ("Ivy Tech") from 2000 to 2014. Between 2009 and 2014, Hively was denied at least six full-time positions at Ivy Tech. Hively did not receive a full-time teaching position and in July 2014, Ivy Tech decided not to renew her employment contract. In response, Hively filed a charge with the EEOC alleging that Ivy Tech blocked her from full-time employment based on her sexual orientation. After receiving her right to sue letter, Hively sued Ivy Tech alleging that it discriminated against her, in violation of Title VII, because of her sexual orientation. Ivy Tech moved to dismiss Hively's suit, which the trial court granted. Hively appealed to the Seventh Circuit for review. 

The central issue before the Seventh Circuit in Hively was whether Title VII recognized sex discrimination claims based on an employee’s sexual orientation. The Seventh Circuit, bound by prior its own previous rulings on the same issue, held that sexual orientation discrimination is not protected by Title VII and affirmed the trial court's dismissal of Hively's claims. The Seventh Circuit granted Hively's request for an en banc review of its decision, a procedure where every judge in the circuit hears the rehearing of the appeal.

On the en banc appeal, the Seventh Circuit reversed its course and held that sexual orientation is, by law, sex discrimination under Title VII. In its opinion, the Seventh Circuit abandoned its previous rulings' "gossamer-thin" distinctions between claims of gender stereotyping and sexual orientation, finding that such claims are indistinguishable. Unlike sexual orientation discrimination, courts have long held that discrimination based on gender stereotyping is recognized under Title VII. The most notable gender stereotyping case dates to 1989, when the Supreme Court of the United States found that a female employee who did not obtain a promotion to partner because she did not conform to gender based stereotypes held by her employer stated a cognizable claim under Title VII. The Seventh Circuit analogized Hively to the Supreme Court because Hively did not conform with her employer's stereotype that all women should be heterosexual.

The Seventh Circuit found additional support for its holding in Hively from a previous Supreme Court decision, which held that Virginia's prohibition of the marriage of interracial couples was unconstitutional. Virginia's laws were racially discriminatory because they discriminated against a person for their association with a member of another race. The Seventh Circuit applied the same logic to Hively, i.e. Hively alleged that her employer discriminated against her based upon her association with a member of another sex; therefore, her employer engaged in sex discrimination. The Seventh Circuit further placed its decision in the backdrop of the Supreme Court's recent decision which held that same-sex couples have the fundamental right to marriage. The Seventh Circuit noted the circular logic it could create in holding that Title VII does not prohibit sexual orientation discrimination, because it would allow for "a person [to] be married on Saturday and then fired on Monday for just that act."

Hively emphasizes the increased visibility that LGBT discrimination in the workplace currently possesses. With the Seventh Circuit's recognition of sexual orientation discrimination under Title VII, there now exists a split among the Circuit Courts of Appeal that would permit Supreme Court review. Spilman will continue to monitor this issue and will update friends and clients as necessary.

Whether you conduct business within the jurisdiction of the Seventh Circuit or not, Spilman recommends that all businesses maintain discrimination free workplace environments for all employees, including those in the LGBT community.

If you have any questions, please contact our Labor and Employment Practice Group.