On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit ruled in a precedential decision that existing civil rights laws do not protect against sexual orientation discrimination. Although it was a unanimous decision, the court expressed great displeasure and conflict with the “illogical” legal structure in which “a person can be married on Saturday and then fired on Monday for just that act.”
The court’s decision, spanning 42 pages, discusses the many inconsistencies in the law following the U.S. Supreme Court’s decision last summer in favor of same-sex marriage.
The appeals court upheld the dismissal of a lawsuit brought by Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College. Hively claimed she was repeatedly not offered a full-time position because of her sexual orientation. The court, seemingly conflicted and reluctant to make the ruling, found that Hively could not overcome the motion to dismiss for the simple fact that the Seventh Circuit has previously declared that claims for sexual orientation are not cognizable under Title VII.
In her opinion, Judge Ilana Rovner wrote that, “From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it.” And while Rovner noted that a change is needed to close the gap that exists in federal civil rights law, until that change comes in the form of new legislation or a Supreme Court decision, the court must adhere to its prior precedent.
Although no other federal appeals courts have decided the issue of whether Title VII’s employment protections extend to discrimination on the basis of sexual orientation, there are at least two other circuit courts considering the issue. Additionally, the U.S. Equal Employment Opportunity Commission has held that sexual orientation is “inherently a sex-based consideration,” and it recognized last summer that firing someone who is gay or lesbian is sex discrimination.
Given how apparent it is throughout the decision that the Seventh Circuit felt its hands were tied, we expect Supreme Court intervention soon. Additionally, LGBT advocates are calling for Congress to pass the Equality Act, legislation that would amend the Civil Rights Act to explicitly include sexual orientation and gender identity among the prohibited categories of discrimination. The EEOC also filed its first lawsuits in March accusing private employers of gender bias for sexual orientation discrimination.
If you have questions about sexual orientation or gender identity discrimination, or how employers will be affected if those become prohibited categories of discrimination, contact our Employment & Labor Group.