Seventh Circuit Finds Title VII Protections Do Not Extend to Discrimination on the Basis of Sexual Orientation

Tuesday, August 9, 2016

The Seventh Circuit Court of Appeals recently found that the protections under Title VII of the Civil Rights Act do not encompass workplace discrimination on the basis of sexual orientation.  Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016).  The Court made this finding despite a recent Equal Employment Opportunity Commission statement that the Title VII sex discrimination protections encompass discrimination on the basis of sexual orientation and gender identity, regardless of any state and local laws that suggest otherwise.

The Court determined whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation. The Court looked at this issue in light of the EEOC's criticism that the Seventh Circuit and others have declared that sexual orientation is not recognized under Title VII without due analysis or
consideration of intervening case law.  After a careful analysis of the precedent, however, the court concluded that Kimberly Hively failed to state a claim under Title VII for sex discrimination; her claim was solely for sexual orientation discrimination which is beyond the scope of the statute.

The distinction between gender non-conformity claims and sexual orientation claims has been a problem for the courts.  Title VII protects gay, lesbian, and bisexual people, but the court noted that protection is only extended to the point that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act—i.e. that gay men tend to behave in effeminate ways and lesbian women have masculine mannerisms. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII.
The Court concluded that until the Supreme Court opines on this issue or there is new legislation, this Court must adhere to the writing of prior precedent as it did in this case.

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