Court Rules Employers Cannot Discriminate Based on Sexual Orientation

In a historic decision, the Seventh Circuit Court of Appeals ruled that employers cannot discriminate against their employees based on sexual orientation.  In an 8-3 decision, the Court ruled that discrimination on the basis of sexual orientation constitutes discrimination on the basis of sex, which violates Title VII of the Civil Rights Act of 1964.  This marks the first time that a Court has ruled that sexual orientation is specifically covered by Title VII’s protection against discrimination in the workplace.   

Kimberly Hively v. Ivy Tech Community College

The ruling was issued in the case of Kimberly Hively v. Ivy Tech Community College.  Ms. Hively, who is openly lesbian, was formerly a part-time professor at Ivy Tech’s South Bend campus.  From 2009 – 2014, she applied for at least six full-time positions but was denied each time.  Then, in 2014, her part-time contract was not renewed.  Ms. Hively, on her own, filed a Charge of Discrimination with the Equal Employment Opportunity Commission, claiming that she had been discriminated against based on her sexual orientation in violation of Title VII.  Thereafter, Ms. Hively, again on her own, filed a federal complaint in the Northern District of Indiana on her claims. 

Ivy Tech moved the Court to dismiss Ms. Hively’s claim for the reason that Title VII prohibited only discrimination on the basis of a person’s “sex,” not on the basis of their “sexual orientation.”  The Court dismissed her claim.  However, with the help of her attorneys through the Lambda Legal Defense & Education Fund, Ms. Hively appealed her case to the Seventh Circuit Court of Appeals, which presides over the federal courts of Indiana, Illinois, and Wisconsin.  Again, Ms. Hively’s claim was denied by a three-judge panel of the Court.  However, in a rare occurrence, Ms. Hively was granted an en banc hearing, meaning all eleven of the judges heard her argument, and the Court ultimately concluded “that discrimination on the basis of sexual orientation is a form of sex discrimination.”

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of race, color, religion, sex, and national origin.  Prior to this ruling, the vast majority of Americans wrongly believed that it was illegal for employers to fire their employees for being gay. However, Congress has never passed a law clarifying whether sexual orientation is protected by Title VII; the United States Supreme Court has never weighed in on the subject directly; and, as a result, the courts over the years have ruled that discrimination on the basis of sexual orientation did not constitute sex discrimination. 

The Supreme Court has issued decisions over the years that provided the Seventh Circuit with guidance on the subject.  For instance, in Price Waterhouse v. Hopkins, the Court held that discriminating against employees for failure to conform to gender stereotypes constitutes sex discrimination; and the Court clarified in Oncale v. Sundowner Offshore Servs., Inc. that it made no difference if the sex of a harasser was (or was not) the same sex of the victim of sexual harassment.  In addition, the courts have acknowledged that employees can raise discrimination claims based on their association with a member of a protected class.  This began with the famous case, Loving v. Virginia (depicted last year in the movie “Loving”), in which the Supreme Court ruled that laws prohibiting interracial marriage were unconstitutional.  This eventually led courts, such as the Second Circuit in Holcomb v. Iona College, to conclude that terminating an employee based on an interracial relationship constituted illegal race discrimination.  However, the courts had not applied this same type of associational analysis to sexual orientation claims.  As a result, there has been much confusion and litigation concerning whether or not sexual orientation discrimination, by definition, is sex discrimination . . . until now.

Hively gets her day in court

Ms. Hively will now have the opportunity to prove in a court of law that she was fired due to her sexual orientation, but, regardless of the outcome of her case, she has already won.  The Seventh Circuit’s ruling provides her, and others like her, protection under the law to be free from workplace discrimination based on sexual orientation.