Federal Law Covers Sexual Orientation Discrimination

Discrimination on the basis of sexual orientation is a violation of Title VII of the Civil Rights Act of 1964’s sex discrimination prohibitions, according to a recent Seventh Circuit decision.  In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit, sitting en banc, reversed panel decision affirming the dismissal of a lesbian instructor’s Title VII lawsuit against her employer in an 8-3 vote.  The lawsuit, which alleged that Hively had been denied full-time employment due to her sexual orientation, came after her part-time employment contract was not renewed and she was passed over for six full-time positions for which she had applied.  Hively alleged that these actions constituted sex discrimination on the basis of sexual orientation, in violation of Title VII.
 
While Hawaii’s Employment Practices law specifically protects individuals from employment discrimination based on sexual orientation, the question of whether similar legal protections apply under federal law has remained unclear.  The Equal Employment Opportunity Commission has taken the position that Title VII’s sex discrimination protections apply to discrimination on the basis of sexual orientation.  Courts that have considered this issue have often disagreed with the EEOC, however, holding that sexual orientation discrimination is not covered under Title VII.  Indeed, even the Seventh Circuit has issued prior precedent finding that Title VII does not protect individuals from discrimination on the basis of sexual orientation.
 
In breaking with precedent and reaching the decision that Title VII does contemplate sexual orientation discrimination as a subset of sex discrimination, the Seventh Circuit acknowledged that “this 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.”
 
The majority decision was supported by concurring opinions by Judge Joel Flaum and Judge Richard Posner.  Judge Diane S. Sykes issued a dissenting opinion.