By Brian Nally

On July 28, 2016, the Seventh Circuit U.S. Court of Appeals affirmed a decision from the United States District Court for the Northern District of Indiana, holding that Title VII does not prohibit sexual orientation discrimination. Kimberly Hively v. Ivy Tech Community College, No. 3:14-CV-1791, 2015 U.S. Dist. LEXIS 25813, at *1 (N.D. Ind. Mar. 3, 2015), aff’d by 2016 U.S. App. LEXIS 13746, No. 15-1720 (7th Cir. July 28, 2016).

In December 2013, a teacher at Ivy Tech Community College filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that she had been discriminated against on the basis of sexual orientation in violation of Title VII. After exhausting her administrative remedies, she filed a Complaint with the United States District Court for the Northern District of Indiana, South Bend Division. Ivy Tech moved to dismiss the Complaint, arguing that sexual orientation is not a protected class—that is, it cannot form the basis of an employment discrimination claim. The trial court agreed and granted Ivy Tech’s motion with little analysis and by relying on prior precedent from the Seventh Circuit holding that sexual orientation is not a protected class under Title VII.

On appeal, the Seventh Circuit affirmed. The Court discussed its prior opinions in Hammer v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Circ. 2000), and Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), which made clear that “harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.” Both cases relied on a 1984 decision in which the Seventh Circuit stated that “homosexuals and transvestites do not enjoy Title VII protection.”  The court concluded that Congress had a narrow view of “sex” in mind when it passed the Civil Rights Act and had nothing more than the traditional notion of “sex” in mind when it voted to outlaw sex discrimination. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). In other words, “sex” is meant only to mean “gender,” not sexual preference.

More recent opinions from the Seventh Circuit have confirmed this holding. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014) (holding that the Title VII prohibition on discrimination based on “sex” extends only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation); Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) (“The protections of Title VII have not been extended, however, to permit claims of harassment based on an individual’s sexual orientation.”); Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002) (“Title VII does not, however, provide for a private right of action based on sexual orientation discrimination.”). Other circuits have reached the same conclusion, including the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and D.C. Circuit. The Ninth Circuit Court of Appeals has been the only circuit court to decide differently.

In Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002), the court held that in severe or pervasive unwelcome physical conduct of a sexual nature—motivated by sexual orientation—is actionable under Title VII, although the court stopped short of concluding that sexual orientation is a protected class under Title VII. District courts within the Eleventh Circuit—who are typically conservative—have taken a more progressive approach and held that Title VII’s prohibition on discrimination “because of sex” includes an employee’s homosexuality or bisexuality or heterosexuality. See e.g., Winstead v. Lafayette County Bd. of Cnty. Comm’r, 2016 U.S. Dist. LEXIS 80036, *27-29 (N.D. Fla. June 20, 2016)

While most circuit courts continue to rely on prior precedent in holding that sexual orientation is not a protected class under Title VII, recent court decisions have recognized that the laws governing workplace behavior are evolving along with the nation’s view of sexual orientation. With this in mind, all interested parties—employees, employers, and attorneys for both sides—should monitor these decisions as the law on these matters continues to evolve.

If you have any questions with respect to any basis for employment practice liability, please contact one of our D&O and Employment Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. 

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