By Beth M. Rivers

In a groundbreaking decision, the Court of Appeals for the Seventh Circuit has ruled that workplace discrimination based on sexual orientation violates federal civil rights law. In Hively v Ivy Tech Community College of Indiana, 853 F3d 339 (7th Cir 2017) the court found that such discrimination is a form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, the federal law which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. This is the first time that a federal court of appeals had reached this conclusion and could potentially change the national and local landscape of employment law for LGBT people.

Although courts have been reluctant to expand the protections of Title VII and the Elliott-Larsen Civil Rights Act to  include sexual orientation claims, some Michigan and federal courts have used a gender-stereotyping theory to litigate claims of sexual orientation discrimination. However, the EEOC has  recognized sexual orientation as a protected class since 2015 and has successfully pursued charges of sex discrimination based on sexual orientation. Now a court of appeals have also recognized the validity of such a claim.

In Hively the plaintiff sued her employer arguing that the school violated Title VII when it denied her full-time employment and promotions after she had been seen kissing her then-girlfriend. In its decision, the Court of Appeals concluded that discrimination on the basis of sexual orientation constitutes impermissible discrimination on the basis of sex – which is one of the specifically  protected categories under Title VII. In reaching this result, the Court rejected any distinction between sex discrimination based on sexual orientation and sex discrimination based on gender stereotyping noting that while courts have previously “described the line between a gender nonconformity claim and one based on sexual orientation as gossamer thin, we conclude that it does not exist at all.” The Court explained that Hively’s claim is no different than any other gender stereotyping claims brought by women who were rejected for job in traditionally male workplaces, such as fire departments, construction and policing as the employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a women. Likewise discrimination based on sexual orientation flows from the premise that all men should date or marry women and that all women should date or marry men. As such, it is precisely the LGBT employee’s sex, i.e. gender, that precipitates discrimination on the basis of sexual orientation. In short, according to the Court, sexual orientation discrimination is sex discrimination and thefore Hively was permitted to proceed with her claim.

While the Hively decision technically only applies to employees in the Seventh Circuit, which includes the states of Indiana, Illinois and Wisconsin, this decision along with the position of the EEOC, has established a foothold which hopefully will be followed by additional federal courts and state courts including Michigan.