Sexual Orientation Is Still Not a Protected Class Under Title VII

By Vanessa B. Chambers Aug 24, 2016

A lesbian professor who claimed that she was denied full-time employment and the renewal of her contract because of her sexual orientation could not bring her claim under Title VII of the Civil Rights Act of 1964, the 7th U.S. Circuit Court of Appeals ruled.  

In 2000, Kimberly Hively began teaching part time at Ivy Tech Community College (ITCC) of Indiana. From 2009 to 2014, she applied for six full-time teaching positions at ITCC. She claims she met the job requirements and had only positive performance reviews but did not receive any interviews. In 2014, ITCC did not renew her employment contract.

After filing a charge against ITCC with the Equal Employment Opportunity Commission (EEOC) and receiving a right-to-sue letter, Hively sued ITCC, alleging that she did not receive a promotion to a full-time position and that her contract was not renewed because of her sexual orientation, in violation of Title VII. ITCC responded that Title VII does not apply to claims of sexual orientation discrimination. The district court agreed with ITCC and dismissed Hively's claim.   

The 7th Circuit affirmed the dismissal. In doing so, it relied on the following: Congress' intended narrow meaning of the word "sex" when it passed Title VII, Congress' repeated refusal to add sexual orientation as a protected class under Title VII and prior 7th Circuit rulings.

To make its decision, the 7th Circuit reviewed decades of sex-based discrimination cases from across the country to determine how courts have approached Title VII claims based on sexual orientation (e.g., a woman is discriminated against because she is a lesbian) versus Title VII claims based on gender nonconformity (e.g., a woman is discriminated against because she acts in a conventionally "masculine" manner). 

During its review, the 7th Circuit found inconsistent case law and what it referred to as "odd results." For example, some courts have simply denied sex-based claims involving sexual orientation whereas others have denied such claims where sexual orientation and gender nonconformity allegations are intertwined. Other courts have tried to separate those claims, denying the sexual orientation claims and allowing the gender nonconformity claims, while others have allowed gender nonconformity claims only where the plaintiff exhibits stereotypically gay or lesbian behavior. Meanwhile, for its part, the EEOC has concluded that sexual orientation is inherently a sex-based consideration and a viable Title VII claim.  

The 7th Circuit went on to compare sexual orientation claims to race-based discrimination, which is prohibited. Specifically, it noted that even though Title VII protects, for example, a white worker who is discriminated against because of his or her close relationship with a black worker, it does not protect employees who have close relationships with persons of the same gender.    

In sum, the 7th Circuit decided that while there is reason not to condone a legal structure in which employees can be discriminated against based on who they date, love or marry, in absence of clear Supreme Court guidance or congressional action, Hively's claim failed as a matter of law. 

Hively v. Ivy Tech Cmty. Coll., 7th Cir., No. 15-1720 (July 28, 2016).

Professional Pointer: The EEOC continues to pursue sexual orientation claims under Title VII, and many localities have laws prohibiting discrimination based on sexual orientation. Employers should remain vigilant in avoiding such claims and also be mindful of potential claims involving gender nonconformity and other sex-based allegations.      

Vanessa B. Chambers is an attorney with the Worklaw® Network member firm of Winterbauer & Diamond PLLC in Seattle.


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