On April 4, 2017, the Seventh Circuit issued a landmark decision en banc in Hively v. Ivy Tech Community College of Indiana, 3:14-cv-1791. Hively, a part-time adjunct professor who is openly gay, filed suit against her employer, Ivy Tech, after she unsuccessfully applied for at least six full-time positions. Her contract was not renewed. Hively believed that Ivy Tech discriminated against her because she was a lesbian, pursued a charge with the EEOC and then filed suit. Ivy Tech filed a motion to dismiss, and argued that sexual orientation is not a protected class under Title VII.
Sitting en banc, the Seventh Circuit departed from long-held precedent in nearly all its sister circuits and concluded that sexual orientation is a form of sex discrimination, and thus a protected class under Title VII.
The majority noted that its responsibility was to consider what the correct rule of law is now in the light of the Supreme Court’s authoritative interpretations, “not what someone thought it meant one, ten, or twenty years ago.” The majority realized that Congress did not contemplate sexual orientation discrimination as a protected class when it enacted Title VII more than 50 years ago.
To reach its conclusion that Ivy Tech discriminated against Professor Hively on the basis of sex, the Seventh Circuit reasoned that Ivy Tech allegedly refused to promote Professor Hively because she was gay- or (A) a woman who is (B) sexually attracted to women. The majority concluded that this would result in Ivy Tech allegedly discriminating against Professor Hively, at least in part, because she was a woman, which is prohibited by Title VII.
What should employers do?
However the Seventh Circuit arrived at its decision, the stage is now set for the Supreme Court to consider whether Title VII extends protection to sexual orientation because there is now a split among the federal circuit courts of appeal.
The Supreme Court’s changing make-up will likely affect any decision, though such a case will not make its way to the high Court until at least 2018. Meanwhile, states have begun to shift to offer greater protections to employees than those afforded under Title VII. Currently, 33 states offer sexual orientation protection to all employees, and 24 offer protection for gender identity. This trend in state legislatures may either eventually influence a change in federal legislation under Title VII, or the more liberal justices on the Supreme Court who take a broader view of what the word “sex” means. Furthermore, the Supreme Court has afforded protection to individuals who do not conform to sexual stereotype, and the majority opinion in Hively recognized that “[v]iewed through the lens of the gender nonconformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype.”
Given this movement at the state and local level, employers can protect themselves by including additional language in their harassment policies to extend protection to sexual orientation as well as gender identity and training employees on discrimination and harassment in this area. Suggested language could include the following example:
The Company strictly prohibits harassment against employees and other covered persons because of race, religion, creed, national origin, ancestry, sex (including gender nonconformity and status as a transgender or transsexual individual), sexual orientation, age, disability, citizenship, genetic information, past, current, or prospective service in the uniformed services, or any other characteristic protected under federal, state, or local law.
Coats Rose has experienced employment attorneys who currently counsel clients on these issues, and other issues in the dynamic area of Title VII. For additional information on best practices to implement policies and training that include protections for sexual orientation and gender identity, or for other questions regarding these topics, please contact us.
 En banc means that the case was heard before the entire panel of the Seventh Circuit, not just a panel of three judges. Hively v. Ivy Tech had previously been heard before a panel of the Seventh Circuit, which had ruled that sexual orientation claims were not cognizable under Title VII. The plaintiff requested en banc review, which the Seventh Circuit granted.