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eLABORate: U.S. Court of Appeals Ruling on Sexual Orientation Discrimination Sets the Stage for a Supreme Court Show Down

April 05, 2017

For the first time ever, a federal appeals court has held that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against sexual orientation discrimination in employment. In the groundbreaking decision, the United States Court of Appeals for the Seventh Circuit, based in Chicago, held that gay and lesbian workers, and by extension, others in the LGBT community, can sue employers for discriminatory employment actions based on their sexual orientation. 

The Seventh Circuit’s ruling, which acknowledges the changes in society since Title VII’s passage more than half a century ago, puts it in conflict with other recent rulings by federal circuit courts in other parts of the country. This circuit conflict ensures that the contentious issue likely will be decided by the United States Supreme Court, barring more immediate action by Congress to include sexual orientation under Title VII’s umbrella.

The case decided by the Seventh Circuit involved Kimberly Hiveley, who was a part-time instructor at a community college in South Bend, Indiana. In 2014, she sued the school pursuant to Title VII, claiming the community college would not hire her full-time and terminated her contract because she is a lesbian. 

Among other protected categories, Title VII protects against employment discrimination on the basis of sex. However, the 53 year old law, not surprisingly, contains no express  inclusion of sexual orientation as falling under that protection. For that reason, federal courts across the country have for years dismissed Title VII lawsuits based on sexual orientation discrimination. Legislation has repeatedly but unsuccessfully been introduced in Congress to include sexual orientation as a protected category under Title VII.

In Hiveley’s case, her lawsuit was initially dismissed by the federal District Court, and that dismissal was affirmed by a three judge panel of the Seventh Circuit. However, in the 8-3 decision by all of the Seventh Circuit judges, hearing the case en banc, the court rejected its prior rulings:

[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court's authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago. The logic of the Supreme Court's decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

In the dissent to the majority’s opinion, it noted that however welcome the result, amending Title VII was the job of an elected United States Congress, and not the job of unelected federal judges.

While the Seventh Circuit’s ruling permits Hiveley to pursue her lawsuit against her former employer in the District Court in Indiana, the issue remains unsettled nationwide. In recent rulings by the United States Court of Appeals for the Second and Eleventh Circuits, the appellate courts held they were required by their prior rulings to affirm that Title VII doesn’t prohibit sexual orientation discrimination. In the face of such a circuit split, the issue will likely be ultimately decided by the United States Supreme Court. 

For a number of years, the Equal Employment Opportunity Commission (“EEOC”) has adopted an interpretation of Title VII that takes the position that sexual orientation is a protected class, and has brought federal lawsuits against employers on behalf of LGBT employees. Many employers already include sexual orientation as a protected category of worker in their employee handbooks and equal employment statements.