Sexual Orientation Discrimination Case

Sexual orientation “is a form of sex discrimination” — so ruled a federal appellate court in Illinois.  This is a departure from rulings from other appellate courts across the country which had determined that Title VII does not prohibit discrimination on the basis of sexual orientation.  The Seventh Circuit’s decision is discussed in today’s Long Island employment law blog.

In Hively v. Ivy Tech Community College of Indiana, the plaintiff is openly lesbian and worked as part-time professor for the defendant college.  She applied for multiple full-time positions, but was turned down and was ultimately fired for the part-time position.  Hively brought claims against the college alleging sexual orientation discrimination, but the EEOC, then the District Court, then a panel of the Seventh Circuit all dismissed the claims, the latter of which holding that sex discrimination is different than sexual orientation discrimination and that Title VII only prohibits discriminating against “women because they are women and against men because they are men.”

The Seventh Circuit then convened “en banc”, meaning that all judges which sit on the Circuit heard the case, instead of just a panel of three.  The Circuit reviewed leading Supreme Court cases including Price Waterhouse and Oncale which noted, respectively, that Title VII prohibits gender stereotyping and that in discrimination cases, it does not matter if the harasser and victim are of the same sex.  The Court further noted that because of the “importance of the issue . . . a majority of the judges in regular active service voted to rehear this case en banc.”

The Court first dispensed with arguments that Congress’s inaction with respect to amending Title VII to clarify whether sexual orientation discrimination is encompassed shows that sexual orientation is not intended to be protected by Congress and that Congress’s explicit inclusion of sexual orientation in later statutes also shows its intent that sexual orientation was not intended to be protected by Title VII.

The Court was persuaded, however, that the EEOC’s position is that sexual orientation discrimination is protected under Title VII.  The Court was further persuaded by language in Oncale suggesting that “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”

The Court next considered Hively’s arguments.  First, she argued a “comparative method.”  In this argument, everything about Hively remains the same, except that she is a man.  Hively argued that if she were a man married to woman, her employer would not have taken action against her.  The Circuit was convinced and described this as “paradigmatic sex discrimination.”  In other words, Hively was disadvantaged because she is a woman.

Hively also made an “associational theory” argument.  This argument is relied on the now settled principle that a person can be discriminated against because of the protected characteristics of someone that person associates with.  The perhaps most famous example from a New York court is where a fired white employee argued he was fired because he was married to an African-American woman.  Again, changing the sex of one of the partners in Hively’s case, alters the outcome.  If one were male and the other female, Hively alleges she would not have been fired.  Accordingly, the Seventh Circuit was further persuaded by this argument.

In sum, the Seventh Circuit held that Title VII prohibits discrimination on the basis of sexual orientation.

The trend set by the Seventh Circuit may spread across the country.  Indeed, we recently blogged about a federal appeals court in New York which suggested if it were sitting “en banc” it could similarly rule that Title VII prohibits sexual orientation discrimination.

Famighetti & Weinick PLLC are employment lawyers on Long Island who handle cases of sexual orientation discrimination.  If you have a question about the Hively decision, sexual orientation discrimination, or employment discrimination, contact us at 631-352-0050 or visit us on the web for more information at

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