In Focus: Court Says Civil Rights Act Prohibits Sexual Orientation Discrimination Against Workers

By Allen Smith, J.D. Apr 5, 2017
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The 7th U.S. Circuit Court of Appeals has adopted the Equal Employment Opportunity Commission's position that federal law prohibits sexual orientation discrimination, creating a split among the appeals courts that is likely to be resolved by the U.S. Supreme Court.

Teacher Raised Claim Following Failure to Promote, Discharge

The 7th Circuit case arose from the claim of Indiana teacher Kimberly Hively, who claimed that a community college did not hire her full time and was let go because she is a lesbian. "I always thought there was a big disconnect when they legalized gay marriage but didn't extend any protections against workplace or housing discrimination," said Hively, who now is a high school math teacher. (Chicago Tribune)

Discrimination Against Gays Is Prohibited Sex Stereotyping

Title VII of the Civil Rights Act of 1964 clearly prohibits sexual stereotyping, according to the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The plaintiff in the 7th Circuit decision "represents the ultimate case of failure to conform to the female stereotype … she is not heterosexual," the 7th Circuit wrote in finding that Title VII prohibits sexual orientation discrimination. (The Washington Post)

Ruling Departs from 11th Circuit Decision Last Month

The 7th Circuit's ruling is similar to a number of district court decisions but contradicts the 11th Circuit panel's holding last month that sexual orientation discrimination is not covered by Title VII. The 2nd Circuit has a pending appeal involving a sexual orientation claim. And the 11th Circuit decision will be appealed to the full 11th Circuit. (SHRM Online)

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Bipartisan Ruling

An appeal is not expected in the Hively case but the 11th Circuit case may be appealed to the Supreme Court if the full 11th Circuit does not rule that Title VII prohibits sexual orientation discrimination. The 7th Circuit reached its decision in an 8-to-3 vote. Five of the eight judges in the majority were appointed by Republican presidents. (The New York Times)

'Game Changer'

Lambda Legal, which advocates for lesbian, gay, bisexual and transgender issues, called the 7th Circuit decision a "game changer" for lesbian and gay workers. In a concurring opinion, Judge Richard Posner said changing norms called for the 7th Circuit's change in interpretation of Title VII. In a dissenting opinion, Judge Diane Sykes said, "It's understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we're not authorized to amend Title VII by interpretation." (U.S. News & World Report

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