On April 4, 2017, in the Hively v. Ivy Tech Community College case, the Seventh Circuit Court of Appeals ruled, in an 8 – 3 decision, that workplace discrimination based on sexual orientation is covered by Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. While there are many federal cases that have defined “sex” broadly for purposes of determining whether an employer has discriminated against an employee based upon the employee’s sex, none – until now – have specifically included sexual orientation under the Title VII “sex” umbrella.
Many states and cities have laws in place that prohibit discrimination based on sexual orientation and/or gender identity. Even the EEOC takes the position that discrimination based on sexual orientation or gender identity are prohibited under Title VII. However, the Seventh Circuit is the first and only
federal circuit court of appeals to find that sexual orientation is a protected class under federal law.
Chief Judge Diane Wood’s majority opinion, in part, looked to certain U.S. Supreme Court rulings in concluding that Title VII’s prohibited sex discrimination includes sexual orientation discrimination. Specifically, Judge Wood pointed out that the court in Price Waterhouse v. Hopkins held that the practice of gender stereotyping falls within Title VII’s intended meaning of sex discrimination. She also looked at the decision in Oncale v. Sundowner Offshore Services, where the court found that same sex sexual harassment is prohibited under Title VII’s prohibition against sex discrimination. In further support, Judge Wood observed that in the Obergefell v. Hodges case, the court recognized that the Constitution protects the right of same-sex couples to marry.
The question for employers in the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin, is – now what? First and foremost, those employers should review their handbook and other relevant company policies, as well as, update their management training materials. For those employers who have not yet conducted an Anti-Discrimination and Anti-Harassment and Sensitivity training session, now is a great time to do so.
Terese Connolly is a partner in Culhane Meadows’ Chicago office. She is a trusted advisor to her clients, with over a decade of experience advising and counseling multinational corporations in navigating the wide range of employment related issues that arise when managing a global workforce.