7th Circuit takes detailed look at Title VII, sexual orientation claims

Jennifer Nelson for www.theindianalawyer.com

Noting the writing may be on the wall that people who bring sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964 should be protected, the 7th Circuit Court of Appeals was bound by precedent to deny a woman’s claim against Ivy Tech Community college in South Bend.

Kimberly Hively brought her claim after she was passed over repeatedly for full-time employment with the school. She had worked as a part-time adjunct professor since 2000 and claimed she was denied full-time employment and promotions based on sexual orientation in violation of Title VII.

Ivy Tech filed a motion to dismiss because Title VII doesn’t apply to sexual orientation claims, which the District Court granted last March. And based on Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) and Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), the 7th Circuit panel affirmed. Those cases made clear that harassment based solely upon a person’s sexual preference or orientation, and not one’s sex, is not an unlawful employment practice under title VII.

But Judge Ilana Rovner then went on to devote much of the decision to the changing legal landscape when it comes to protections and civil rights for gays and lesbians. She noted that the Equal Employment Opportunity Commission recently declared that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” Baldwin v. Foxx, EEOC Appeal 0120133080, 2015 WL 4397641 (July 16, 2015).

The panel looked at how other circuits have handled the issue – some carefully try to tease apart the sexual orientation and gender non-conformity claims, which have been found to be protected under Title VII, and look only at the portions of the claim that appear to address cognizable gender non-conformity discrimination. Some disallow any claims where sexual orientation and gender non-conformity are intertwined.

“Whether the line is nonexistent or merely exceedingly difficult to find, it is certainly true that the attempt to draw and observe a line between the two types of discrimination results in a jumble of inconsistent precedents,” she wrote.

Since the EEOC’s recent holding, the district courts, the “laboratories on which the Supreme Court relies to work through cutting-edge legal problems — are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes,” Rovner wrote. She also pointed out U.S. Supreme Court rulings striking down the Defense of Marriage Act in 2013 and ruling last year that same-sex couples had the right to marry in every state.

“The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.”

Rovner explained we are left with a body of law that protects a lesbian who faces discrimination because she’s not “feminine” enough, but would not protect her for marrying another woman. And until the U.S. Supreme Court releases a decision on this matter or Congress amends the act or writes new legislation, the 7th Circuit must adhere to its prior precedent to affirm Hively had no protection under Title VII for her sexual orientation discrimination claim.

Judge Kenneth Ripple joined the judgment of the court and on parts I and IIA of the decision.

The case is Kimberly Hively v. Ivy Tech Community College, South Bend, 15-1720.