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The Seventh Circuit Court of Appeals Decides That Discrimination on the Basis of Sexual Orientation Is a Form of Gender Discrimination Under Title Vii of the Civil Rights Act, of 1964

For the first time ever, a federal appellate court has held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, a federal statute. See Hively v. Ivy Tech Cmty. Coll. of Indiana, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)


Title VII makes it unlawful for employers to discriminate on the basis of a person’s race, color, religion, sex, or national origin. So, an employer may not take an adverse employment action, such as a termination or refusal to hire, on the basis of a protected characteristic, such as sex. Historically, lawsuits brought under Title VII alleging discrimination on the basis of sexual orientation have been dismissed, on the grounds that Title VII does not identify sexual orientation as a protected category.
In the Hively case, the Plaintiff was an openly gay adjunct professor, who filed a lawsuit under Title VII against her employer, alleging she was denied full-time employment because of her sexual orientation. The employer brought a motion to dismiss on the grounds that sexual orientation discrimination is not a protected category under Title VII, and the lower court granted the motion. Plaintiff Hively appealed to the Seventh Circuit Court of Appeals.

The question before the Seventh Circuit Court of Appeals was whether “actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.” The Seventh Circuit held, “[W]e conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination” and “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.” The court relied on two legal theories to come to this conclusion. First, it held that Hively’s claim was, at its core, a gender stereotyping claim and that Title VII prohibits gender stereotyping. Second, it held that Hively was alleging discrimination on the basis of her association with a woman and that Title VII prohibits discrimination on the basis of association with someone with a protected trait (sex).


The U.S. Supreme Court has yet to decide whether sexual orientation discrimination is a subset of sex discrimination. However, the Seventh Circuit relied heavily on Supreme Court precedent about gender stereotyping. The Seventh Circuit held, “[v]iewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”
Since the Supreme Court has previously ruled that an employer cannot discriminate against a woman on the basis of being “too ‘masculine’” or having “no makeup, no jewelry, no fashion sense,” the Seventh Circuit found that the same logic applies to discriminating against a woman for not meeting her sexuality stereotype.


The circuit courts are splitting on this issue. The Eleventh Circuit, for example, dismissed a similar lawsuit in March 2017 on the grounds that Title VII does not protect against discrimination on the basis of sexual orientation. It rejected the argument that sexual orientation is another form of gender stereotyping. A petition for a rehearing en banc has been filed in that case.


It’s possible that with the circuits splitting on this issue as to whether sexual orientation is a protected category under Title VII may eventually be heard by the Supreme Court.


If it does, it would be interesting to see Justice Neil Gorsuch in action.

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