Employees in Illinois, Indiana, and Wisconsin will be the first workers in the country with the right to sue employers in Federal Court for discriminatory employment practices based on sexual orientation. In Hively v. Ivy Tech Community College, 2017 U.S. App. LEXIS 5839, (7th Cir. 2017), the en banc Seventh Circuit ruled that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Chief Circuit Judge Diane P. Wood wrote that recent Supreme Court decisions addressing discrimination on the basis of sexual orientation, as well as “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.” Id. at *25-26.
Title VII expressly prohibits workplace discrimination against an employee based on the employee’s race, color, religion, sex, or national origin. Prior to Hively, many gay and lesbian employees pursuing a claim under Title VII were limited to discrimination claims for “sex stereotyping” or mistreatment for not conforming to gender norms, often based on work attire, hair style, or manner of walking or talking. This strategy has proven inadequate to cover many employees that face discrimination at work. It also fails to reconcile what the Seventh Circuit has deemed the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Id. at *6.
The Seventh Circuit is the first federal appellate court to interpret Title VII in this manner, and their decision comes within weeks of both the Second and Eleventh Circuit finding that they could not recognize sexual orientation discrimination claims under Title VII. A circuit split presents the opportunity that workplace sexual orientation discrimination could go before the Supreme Court and expand the amount of covered employees nationwide. In the alternative, Congress could pass legislation to expressly codify an individual’s sexual orientation as a separate protected class under Title VII.
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About Innessa Melamed
Innessa Melamed is a Partner at Faruqi & Faruqi, LLP’s New York office and focuses her practice on employment law and wage and hour class action litigation.
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