Just last year, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act.  On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit rejected the EEOC’s determination and ruled that Title VII does not protect employees from workplace discrimination on the basis of sexual orientation.  In Hively v. Ivy Tech Community College, Kimberly Hively, a part-time adjunct professor, claimed that she was denied full-time employment and promotions because she was a lesbian.  Hively began her teaching career at Ivy Tech in 2000.  Between 2009 and 2014, she applied for six full-time positions. She alleged that the college never even interviewed her for any of those positions, despite having the necessary qualifications and a record of positive work performance evaluations.

In December 2013, Hively filed a charge with the EEOC, alleging that she had been discriminated against on the basis of her sexual orientation and had been “blocked from full-time employment without just cause.”  Ivy Tech did not renew her part-time employment contract in July 2014 and she filed suit.  Ivy Tech successfully argued at both the district court level and on appeal that neither Title VII nor Illinois law applied to claims of sexual orientation discrimination.

Discrimination claims based on sexual orientation was not new ground for the Seventh Circuit.  The court noted “that this circuit has undeniably declared that claims for sexual orientation are not cognizable under Title VII … [and not] cognizable as claims for sex discrimination under the same statute.”  However, the court expressed frustration with the current state of the law.  First, the court pointed out that since gender norm discrimination fell within the scope of “gender discrimination” under Title VII, but sexual orientation discrimination did not, only plaintiffs who made a point to appear “extra” homosexual or lesbian found relief under the statute.  Indeed, “the distinction between gender non-conformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those people meet society’s stereotypical norms about how gay men or lesbian women look or act—i.e. that gay men tend to behave in effeminate ways and lesbian women in masculine ways.”

Second, the court noted the tension that exists between recent civil rights decisions, such as Oberfegell recognizing same-sex marriage, and the line of Title VII cases rejecting claims for sexual orientation discrimination.  Specifically, “[t]he cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Sunday and then fired on Monday just for 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.”

Citing antiquated precedent, the court concluded with pleas to both Congress and the Supreme Court.  “Perhaps the writing is on the wall.  It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.  But writing on the wall is not enough.  Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”

As noted by the Seventh Circuit, the distinction between sexual orientation claims (which are not actionable as found by the Seventh Circuit) and gender non-conformity claims (which are actionable under Title VII) is at best subtle.  Stay tuned, as we expect this is not the last we will hear of this issue.