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Seventh Circuit Appears Reluctant in Determining Title VII Does Not Prohibit Sexual Orientation Discrimination

Most people are aware of the EEOC's recent and highly publicized position that discrimination based on an individual's sexual orientation constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. The EEOC's position has been applauded by LGBT advocates who have been unable to get Congress to amend Title VII to include sexual orientation as a protected class. Despite the EEOC's position, the Seventh Circuit Court of Appeals recently upheld the dismissal of a professor's sexual orientation claim under Title VII. And while the Court felt handcuffed by precedent concerning sexual orientation discrimination under Title VII, it did not hold back in addressing the inconsistencies of such precedent. The Court implicitly urged the Supreme Court and/or Congress to resolve these inconsistencies in a way that would protect individuals from sexual orientation discrimination in employment.

The case, Hively v. Ivy Tech Community College, involved a part-time professor who claimed that she was denied full-time employment and promotions because of her sexual orientation in violation of Title VII. As its defense, the college asserted that sexual orientation discrimination is not protected under Title VII. The professor appealed the district court's decision which sided with the college's position that sexual orientation discrimination is not protected under Title VII. In light of the changing legal landscape regarding LGBT rights and the EEOC's position on sexual orientation discrimination, the Seventh Circuit decided to revisit the issue of whether Title VII covers claims for sexual orientation discrimination. As the Court recognized, case law precedent in the Seventh Circuit emphatically holds that Title VII does not prohibit sexual orientation discrimination. The Court recognized that it was bound to this precedent unless and until it was overruled or undermined by a higher court (the Supreme Court) or other supervening developments (e.g. statutory overruling or the precedent becomes intolerable by defying practical workability). Since the Supreme Court and Congress have yet to state otherwise, the Court was bound to continue holding that Title VII did not prohibit sexual orientation discrimination. Therefore, the Court affirmed its precedent and, in turn, the district court's dismissal of the professor's claim. And then things got interesting.

Rather than end the Court's opinion with its conclusion that sexual orientation still lacks protection under Title VII, the Court acknowledged the EEOC's recent position and spent about 45 pages discussing the many issues with continuing to deny sexual orientation protection under Title VII. First, the Court discussed the difficulty and inconsistency in dealing with discriminatory gender stereotyping claims (i.e. discrimination based on an individual failing to conform to gender stereotypes related to his/her gender; such gender stereotyping constitutes sex discrimination under Title VII) when such claims involve an individual with a different sexual orientation. In essence, the Court found that it is difficult, and arguably impossible, to distinguish between gender non-conformity claims and sexual orientation claims because sexual orientation claims almost always include some aspect of gender non-conformity (e.g. discriminating against a employee because he/she is homosexual can be framed as discrimination against the employee because he/she fails to conform to the gender stereotype that a man should marry/date a woman and a woman should marry/date a man). Second, the Court discussed the illogical hypocrisy resulting from Title VII prohibiting discrimination based on an employee's association with a person on another race but not extending the prohibition to discrimination based on an employee's association with a person of another sex. Finally, the Court pointed out that although the Supreme Court decided that states can't prohibit marriage between same-sex couples, such couples still don't enjoy the full right of marriage because they can still face workplace discrimination for exercising their marriage right.

Suffice it to say that the Court's discussion in Hively demonstrates that courts have taken notice of the EEOC's position and the shifting opinion concerning sexual orientation discrimination in the workplace. One could even argue that the Court's discussion outside of its determination in Hively reveals the Seventh Circuit's agreement with the EEOC. Yet, while the Seventh Circuit has acknowledged that the legal winds regarding this issue could be shifting, it remains begrudgingly resigned to the fact that it must wait for the Supreme Court or Congress to make the change before scrapping its prior precedent.

Questions? Contact Attorney Ryan Young in our Chicago office at (312) 629-9300 or ryyoung@wesselssherman.com.

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