In a full panel hearing before the Seventh Circuit, Kimberly Hively was given the ability to proceed with her employment discrimination case wherein she claimed that she was denied promotions and ultimately terminated because of her sexual orientation. Under the traditional language of Title VII, sexual orientation is not contemplated as a protected category. As such, courts have regularly declined to extend Title VII’s anti-discrimination protections to the LGBT community. In fact, a three-judge panel in Atlanta recently ruled that employers were not prohibited by Title VII from discriminating against employees based upon their sexual orientation.
On Tuesday, however, that changed.
While the Seventh Circuit did not try to rewrite Title VII to include sexual orientation as a protected category, it clarified that sexual orientation discrimination is essentially sex discrimination, which is already a protected category under the statute. Indeed, Hively, who was a teacher for Ivy Tech Community College, was fired because she was a woman who loved another woman. If Hively’s gender was removed from the equation, or rather, if Hively were a man, would she have been treated the same way? If the answer is no, then Ivy Tech’s employment decision was based upon Hively’s gender and her failure to “conform” to the norms of her gender.
Chief Judge Diane Wood, writing for the majority said:
Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.
You can read the entire opinion here. The Seventh Circuit’s decision is sure to create a split amongst the circuits, as courts continue to grapple with where and how sexual orientation fits within the landscape of Title VII. The Equal Employment Opportunity Commission (EEOC), the administrative agency responsible for enforcing Title VII, has indicated in its guidelines that it interprets sexual orientation as a protected category because discrimination based upon orientation is discrimination based upon sex.
In an ever progressing society, Siegel & Dolan is excited to see that workplace protections are expanding for more employees. We will continue to aid in this progressive forward momentum, and continue to advocate for the protection of LGBT employees.