Owen H. Laird, Esq.
On March 25, 2016, we reported on landmark lawsuits filed by the Equal Employment Opportunity Commission (“EEOC”) in a blog titled “EEOC Files Landmark Lawsuits Alleging Sexual Orientation Discrimination Under Title VII.” In these cases, the EEOC asserted claims of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) on behalf of workers. Title VII provides the basic anti-discrimination protection that most employees in the United States enjoy. These new cases are significant because they mark a departure from the previous interpretation of sexual orientation under Title VII: treating sexual orientation as a protected characteristic under Title VII where it previously had not been viewed as such.
Title VII protects against discrimination on the basis of sex. The EEOC asserted that sexual orientation claims constitute a form of sex discrimination, arguing that sexual orientation and sex are inherently linked and that sexual orientation discrimination involves gender stereotypes and adherence to gender norms. While some states and municipalities have enacted laws explicitly protecting against sexual orientation discrimination, the EEOC’s expansion of Title VII brought these protections to millions of American workers who do not live in regions with state or local anti–sexual orientation discrimination statutes.
Even though the EEOC is tasked with interpreting and applying Title VII, however, courts are not necessarily bound by its decisions. As a result, not all courts have recognized the new scope of Title VII. The most eloquent analysis of the state of Title VII anti-sexual orientation discrimination law is a June 28, 2016, decision by the Court of Appeals for the Seventh Circuit, Hively v. Ivy Tech Cmty. Coll. In this decision, the Court of Appeals explained why it chose to follow circuit precedent in limiting the scope of Title VII, rather than adopting the position taken by the EEOC. The Court wrote at length about the issue, but in short held that the EEOC’s positions—that sexual orientation is inherently linked with sex, and that sexual orientation discrimination claims can be pursued under existing Title VII standards concerning gender stereotyping—have no basis in law. For example, in addressing the EEOC’s first argument, the court states: “[A]lthough disentangling gender discrimination from sexual orientation discrimination may be difficult, we cannot conclude that it is impossible.” The court goes on to argue that the existing case law and the record of Congress’ intent in enacting Title VII make clear that the statute cannot extend to sexual orientation discrimination.
The decision in Hively is now binding on all District Courts in the Seventh Circuit. Earlier this week, a federal District Judge in the Northern District of Illinois relied on Hively in dismissing a sexual orientation discrimination claim brought under Title VII. In that case, Matavka v. Bd. of Educ., Lubovir Matavka brought claims against his former employer, the Board of Education of J. Sterling Morton High School District 201 and two of his supervisors. Although the decision in Matavka came out only a few days after Hively, the Hively decision settled the issue.
While Hively and its progeny, for now, deny workers in Wisconsin, Illinois, and Indiana federal protection against sexual orientation discrimination, the Seventh Circuit Court of Appeals is not content with the present state of the law. The court repeatedly lamented the disparate results achieved under the status quo, describing them as a “confused hodge-podge.” The Hively decision concludes as follows:
Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED. (citations omitted).
The Seventh Circuit clearly seeks change from the only two bodies that can provide it: the Supreme Court and Congress. Given the current state of both Congress and the Court, it is unlikely that any significant change on this issue will happen in the near future; however, if a Democratic president fills the Supreme Court’s current vacancy, that vote would likely tilt the Court towards a more liberal interpretation of Title VII. In fact, Hively itself may be appealed to the Supreme Court to raise this issue there.
Workers in New York have separate protections against sexual orientation discrimination under the New York State Human Rights Law and the New York City Human Rights Law. If you believe that you have been discriminated against at work because of your sexual orientation, contact The Harman Firm, LLP.