By Sam Schwartz-Fenwick and Chris Kelleher

Are Federal Courts ready to recognize that Title VII’s anti-discrimination prohibition extends to claims of sexual orientation?

This question will be decided when the Seventh Circuit issues a ruling in Kimberly Hively v. Ivy Tech Community College. Such a ruling may be imminent as this case is fully briefed, and oral argument has been held.

To date Federal Courts have by an overwhelming margin refused to apply Title VII to claims of sexual orientation discrimination. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000).  However, there is a great deal of pressure on Federal Courts to revisit this issue, in light of the increasing disconnect between societal acceptance of LGBT individuals and Congress’ refusal to pass a non-discrimination law that expressly covers LGBT individuals. This pressure has only grown since the EEOC’s issuance of Baldwin v. Foxx, EEOC Appeal No. 2012-24738–FAA-03 (July 15, 2015).  In Baldwin, the EEOC for the first-time issued a precedential ruling stating that sexual orientation discrimination is per se “sex” discrimination prohibited under Title VII.

In Hively, the plaintiff asserts that her employer discriminated against her because she is a lesbian.  Plaintiff argues that this alleged mistreatment was “because of sex” and thus barred by Title VII.  She asserts several arguments.  First, that she faced adverse action because she failed to conform with the gender stereotype that women are attracted to men.  Second, that discriminating against a woman based on the gender of the person she loves is akin to associational race discrimination, which courts unanimously condemn. She explains that when a white woman asks for time off to care for her ill spouse, Title VII should no more allow the employer to say “so long as your spouse is a man” than the employer can say “so long as your spouse is white.”

Her employer argues that sexual orientation discrimination, while reprehensible, is not prohibited by Title VII.  In its view Title VII is meant to protect sex as a characteristic – that is, being male or being female – but not “sex”-based association. For support, Defendant notes that nothing in the text or legislative history of Title VII supports extending Title VII’s protections to claims of sexual orientation discrimination. Defendant stresses that Congress, not the judiciary, is the proper body to expand the scope of Title VII.  It notes that Congress has twice amended Title VII without addressing sexual orientation, and  has repeatedly declined to pass laws such as ENDA that prohibit sexual orientation discrimination in the workplace.

How the Seventh Circuit rules will give insight into whether Federal Courts are willing to look beyond past precedent and adopt the EEOC’s view that sexual orientation is a form of sex discrimination and thus barred under the current text of Title VII. Stay tuned, as we will continue to blog on forthcoming developments in this rapidly evolving area of the law.