May 15, 2017 – The U.S. Court of Appeals for the Seventh Circuit has ruled Title VII of the Civil Rights Act (Title VII) prohibits employment discrimination based on sexual orientation. The decision in Hively v. Ivy Tech Community College, issued on April 4, 2017, makes it illegal to use an individual’s sexual orientation as a basis for employment decisions.
This ruling applies to employers with 15 or more employees in Wisconsin, Illinois, and Indiana. Minnesota already prohibits employment discrimination based on sexual orientation under the Minnesota Human Rights Act. North Dakota is expected to pass similar state legislation later this year.
The decision is groundbreaking because it overturned prior cases and also conflicts with law from other federal courts. However, it aligns with the Equal Employment Opportunity Commission’s (EEOC) position. This makes review of the issue by the U.S. Supreme Court likely in the future.
Hively v. Ivy Tech Community College
Kimberly Hively, an openly gay adjunct professor at Ivy Tech Community College, applied for several full-time positions for which she believed she was qualified. After Ivy Tech repeatedly passed her over and then failed to renew her part-time contract, Hively filed a lawsuit in the U.S. District Court for the Northern District of Indiana, alleging that Ivy Tech had discriminated against her on the basis of her sexual orientation, in violation of Title VII.
The Seventh Circuit decided that sexual orientation discrimination is sex discrimination under Title VII for three reasons. First, the Court relied on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) to find that sex discrimination encompasses discrimination because of sexual orientation where an individual is discriminated against for failing to conform to stereotypical gender roles. Second, the Court reasoned that discriminating against a woman because she is dating a woman as opposed to dating a man is in itself sex discrimination, which is protected by the plain language of Title VII. Finally, the Court applied the reasoning in Loving vs. Virginia, 388 U.S. 1 (1967), which prohibited discrimination against a person for associating with an individual of another race.
Is your organization compliant?
Affected employers should review their existing policies to ensure they do not allow discrimination based on sexual orientation or gender identity. Employers should also be familiar with their state laws and review the EEOC’s enforcement guidance to ensure their policies are compliant.
If you have any questions regarding compliance with Title VII, please contact your North Risk Partners advisor. Don’t have an advisor? No problem. We’ll help you find one.
This regulatory update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.