7th Circuit: Sexual Orientation not Protected Category under Title VII

July 30, 2016 – by Jim Spencer

For several years, the EEOC has interpreted Title VII of the Civil Rights Act of 1964 (Title VII) as forbidding any employment discrimination based on sexual orientation. The EEOC’s position is that even though Title VII doesn’t say anything about sexual orientation, the prohibition against sex discrimination is broad enough to cover sexual orientation.

7th Circuit Decision

On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit told the EEOC that its position is wrong, holding in the case of Hively vs. Ivy Tech Cmty. Coll. that Title VII does not protect sexual orientation (gender identify wasn’t at issue in the case). The court’s decision was predicated on the following points:

1. On multiple previous occasions, the 7th Circuit held that Title VII does not protect sexual orientation, thereby creating a precedent that the 7th Circuit is obligated to follow unless overruled by the U.S. Supreme Court.
2. Congress, despite numerous attempts to amend Title VII to include sexual orientation, has “repeatedly rejected” that legislation.

What’s an Employer to do?

So, where does this 7th Circuit decision leave employers who are trying to figure out whether Title VII prohibits them from discriminating on the basis of sexual orientation?

Because the 7th Circuit covers Illinois, Indiana, and Wisconsin, the answer for employers in those states is that they won’t violate Title VII if they discriminate based on sexual orientation.

For employers in other states, the answer is not nearly so easy, because the 7th Circuit decision doesn’t have precedential value outside of the 7th Circuit states. At this point, it’s a wait and see game. Employers that want to avoid becoming a test case for the EEOC position will take the EEOC at its word, that Title VII prohibits sexual orientation discrimination, and will handle employment issues accordingly. The only way that employers nationwide will have certainty on this issue is for Congress to amend Title VII to include (or exclude) sexual orientation or for the U.S. Supreme Court to consider the issue.

For more information about Title VII and sexual orientation discrimination, contact attorneys Jim Spencer (jspencer@hinklaw.com or 316-660-6109) or Mitchell L. Herren (mherren@hinklaw.com or 316-660-6208).