In August, we reported on the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, which held that Title VII of the Civil Rights Act of 1964 does not prohibit employment discrimination on the basis of sexual orientation. Last week, on October 11, the Seventh Circuit vacated the Hively decision and granted rehearing en banc. Plaintiff filed a petition for rehearing en banc, which requests that the Seventh Circuit hear the case before a panel of all active judges. Although en banc hearings ordinarily are not ordered, a case may be reheard en banc where the proceedings involve a request of exceptional importance.
In Hively, Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College, alleged that her employer had discriminated against her by denying her full-time employment and promotions because of her sexual orientation. Hively argued that this treatment violated Title VII’s prohibition against sex discrimination. The federal district court for the Northern District of Indiana dismissed Hively’s complaint on the grounds that Title VII did not cover sexual orientation discrimination and, as such, there was no legal basis for Hively’s claims. Hively then appealed to the Seventh Circuit.
The Equal Employment Opportunity Commission—the federal agency which enforces and interprets Title VII—takes the position that Title VII’s prohibition against sex discrimination also covers discrimination based on sexual orientation. According to the EEOC, denying Hively a promotion because of her sexual orientation would violate Title VII’s sex discrimination provision: the EEOC’s enforcement guidelines offer “[d]enying an employee a promotion because he is gay or straight” as an example of an LGBT-related sex discrimination claim.
As the Hively opinion noted, however, the EEOC’s position is not shared by any of the Courts of Appeals that have weighed in on Title VII’s applicability to sexual orientation discrimination. Courts are not required to follow the EEOC’s interpretation of Title VII, and, when confronted with the question of how to address sexual orientation discrimination under Title VII, courts have concluded that the prohibition against sex discrimination in the statute does not include sexual orientation discrimination. Accordingly, the Hively court ruled that, in light of the existing case law as well as Congress’s intentions in enacting Title VII, it could not find sexual orientation discrimination to be cognizable under Title VII; therefore, it affirmed the district court’s dismissal of Hively’s case.
However, the Hively opinion was highly critical of the existing case law on sexual orientation discrimination and of how such precedent affects LGBT employees. For example, the opinion notes that current case law on the scope of Title VII’s sex discrimination provision
protects a lesbian who faces discrimination because she fails to meet some superficial gender norms […] but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage.
The Hively court ended its decision by expressing its hope that, whether by a Supreme Court decision or new legislation, the courts’ interpretation of sexual orientation discrimination under Title VII would change, explicitly stating that “this court undoubtedly does not condone” discrimination on the basis of sexual orientation. Last week’s vacating of the Hively decision may signal the Seventh Circuit’s readiness to move forward on the issue of sexual orientation discrimination.
In New York, employees are protected against sexual orientation discrimination under the New York State and the New York City Human Rights Laws. If you believe that you have been discriminated against at work because of your sexual orientation, contact The Harman Firm, LLP.