Recently, the United States Court of Appeals for the Seventh Circuit became the first federal appellate court in the country to hold that discrimination on the basis of sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is the federal statute which prohibits employment discrimination on the basis of race, color, sex, and national origin.
In Hively v. Ivy Tech Community College, the plaintiff claimed a community college did not consider her for promotion and ultimately terminated her employment because of her sexual orientation. Both the District Court and the Seventh Circuit held that the plaintiff could not state a claim under Title VII because the statute did not protect individuals against sexual orientation discrimination. The Seventh Circuit reheard arguments en banc on November 30, 2016 and issued an opinion on April 4, 2017 reversing the District Court’s dismissal of Hively’s Title VII claim.
Title VII does not include “sexual orientation” among its protected categories. Legislation to amend Title VII to explicitly prohibit discrimination on the basis of sexual orientation has been introduced in every Congress (except one) since 1994, yet has failed to pass. In Hively, the Court of Appeals held the amendment of Title VII was not necessary for the plaintiff to bring a claim, concluding that sexual orientation discrimination is a form of sex discrimination already covered by the statute. This decision falls in line with the Equal Employment Opportunity Commission’s interpretation of Title VII. The EEOC (the federal agency responsible for enforcing Title VII) has long considered sexual orientation discrimination to be covered by Title VII as a form of “sex stereotyping” which the United States Supreme Court held to be a violation of Title VII in Price Waterhouse v. Hopkins (1989).
Over the past few years, the EEOC has aggressively pursued cases alleging discrimination on the basis of sexual orientation and gender identity. In 2016, LGBTQ-related charges were at an all-time high, and the EEOC expects this trend to continue. The Supreme Court has not yet considered whether discrimination on the basis of sexual orientation is prohibited under Title VII, though a Circuit split on the issue may result in the matter being taken up by the Court.